Sv. 


T 
1296 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


f 


r 


PUTERBAUGH'S 


COMMON  LAW 


PLEADING  AND  PRACTICE. 


A  PRACTICAL  TREATISE 


FORMS   OF   COMMON   LAW  ACTIONS,   PLEADING   AND    PRACTICE. 

NOW  IN  USE  IN  THE  STATE  OF  ILLINOIS,  AND 

WHEREVER  THE  SAME  SYSTEM 

PREVAILS. 


By  SABIN  D.  PUTERBAUGH, 

late  judge  of  the  circuit  court,  and  author  of 

puteebaugh's  chancery  pleading 

and  practice. 


Revised  by  Leslie  D.  Puterbaugh, 

JUDGE  OF  THE  PROBATE  COUET  OF 
PEOBIA  CO.,  ILL. 


SEVENTH  EDITION. 


CHICAGO: 
CALLAGHAN  &  COMPANY. 


1896. 


Entered  according  to  Act  of  Congress,  in  the  year  1896,  by 

ANNA  E.  PUTERBAUGH, 
In  the  OflBce  of  the  Librarian  of  Congress,  at  Washington. 


Stereotyped  and   Printed 

by  the 

Chicago    Legal    News    Company. 


T 


INTRODUCTION  TO  THE  SIXTH  EDITION. 


In  presenting  this,  the  sixth  edition  of  this  work,  the  author  deems  an 
extended  introduction  unnecessary.  The  first  edition  was  published  in  1864, 
then  in  a  crude  condition,  with  meager  hopes  of  its  success.  Since  then  it 
has  passed  through  four  revisions,  with  a  constant  and  earnest  endeavor,  on 
the  part  of  the  author,  to  make  it  as  perfect  and  reliable  as  his  abilities, 
amidst  professional  and  judicial  duties,  would  permit.  Whatever  merits  or 
demerits  former  editions  possessed  are  well  understood  by  the  courts  and 
members  of  the  profession  throughout  the  State  of  Illinois,  and  other  States 
and  Territories  where  the  work  has  been  used  and  recognized. 

Since  the  last  revision  there  have  been  constant,  and  in  many  instances 
material  and  radical  changes  in  the  Statutes  upon  subjects  herein  con- 
sidered. The  decisions  of  the  Supreme  and  Appellate  Courts  have  shed 
much  light  upon  questions  of  pleading  and  practice,  and  given  constructions 
of  statutory  remedies  and  defenses  which  have  rendered  former  editions,  in 
many  respects,  an  unsafe  guide. 

Genei-al  principles  of  law  and  justice  are  immutable,  but  the  remedies 
for  enforcing  rights  are  subject  to  constant  changes.  As  new  exigencies 
arise,  courts  are  called  upon  to  give  constructions  to  the  same,  as  governed 
by  such  general  legal  principles. 

It  is  to  be  hoped  that  the  present  edition  will  be  found  to  contain  correct 
pleadings  and  practice  at  common  law,  and  statutoiy  remedies  and  defenses, 
so  far  as  it  pretends  to  treat,  as  it  exists  in  Illinois  to-day. 

*  ******** 

It  has  been  the  constant  aim  of  the  author  to  compress  into  a  single 
volume  the  greatest  amount  of  information  possible.  In  following  this  gen- 
eral plan  much  valuable  matter  is  necessarily  crowded  out,  and  great  brevity 
required  in  the  subjects  considered.  To  partially  obviate  this  omission  ref- 
erences have  been  freely  made  to  other  works  of  standard  authority,  where 
the  several  subjects  have  been  separately  and  elaborately  treated. 

Tlie  author  is  grateful  for  the  generous  favor  and  kind  reception  with 
which  former  editions  of  this  work  have  been  received  by  the  courts  and 
members  of  the  bar,  and  trusts  the  present  edition  will  deserve  and  receive 
the  same  favorable  reception  and  consideration. 

S.  D.  PUTEEBAUGH. 
Peoria,  III.,  March  1, 1888. 

(3) 


756401 


INTRODUCTION  TO  THE  SEVENTH  EDITION. 


In  the  preparation  of  the  present  edition,  the  entire  work  has  been  thor- 
oughly revised  and  re-arranged. 

Although  the  volume  contains  much  new  matter,  by  the  use  of  smaller 
type  for  forms,  its  size  has  not  been  materially  increased. 

Several  new  chapters  and  a  number  of  new  forms  have  been  added. 

Many  additional  cases  are  cited,  including  the  decisions  of  the  Supreme 
Court  reported  in  from  the  121st  to  the  161st  volume  of  the  Illinois  Reports, 
and  of  the  Appellate  Courts  from  the  21st  to  the  62d  volumes  of  the  reports 
of  its  opinions.    References  are  made  to  the  latest  Statutes. 

Tlie  full  titles  to  the  cases  cited  are  given  instead  of  the  book  and  page 
numbers  only  as  in  former  editions. 

The  work  has  been  more  fully  indexed  than  formerly,  and  by  the  use  of 
the  side  headings  it  is  believed  that  the  various  subjects  treated  may  be 
more  readily  found. 

LESLIE  D.  PUTERBAUGH. 

Peoria,  III.,  October  1,  1896. 

(4) 


ANALYSIS  OF  CONTENTS. 


CHAPTEE  I. 

GENERAL  PRINCIPLES  OF  PLEADINGS. 

Object  of — term  defined 1 

The  common  law  system 1 

In  Illinois 2 

Kinds  of  actions 3 

Forms  of  actions 3 

Order  of  pleading 4 

CHAPTER  11. 

COMMENCEMENT  OF  AN  ACTION. 

The  Pr.^cipe 5 

Forvi  of 6 

Bail  in  Civil  Cases— Capias  ad  Respondenduji 7 

Actions  sounding  merely  in  damages 7 

Plaintiff  to  give  bond 8 

Bail  bond 8 

Forms  of  affidavit  for  capias 8,  9 

Forms  of  order  for  capias 10 

Form  of  bond  to  he  given  by  plaintiff 10 

Form  of  bond  to  be  taken  by  sheriff  from  defendant 11 

Affidavit  of  Plaintiff's  Claim 11 

Form  of 12 

Security  for  Costs ; . . .  13 

When  required 13 

Suits  by  minors  by  next  friend 14 

Form  of  security  for  costs 14 

Surety — Approval  and  effect  of  bond 14 

Dismissal  for  want  of  security  for  costs 14 

Motion  to  dismiss  for  want  of 15 

Rule  to  file  security 15 

Cross-motion  for  leave  to  supply 15 

Objections  to  secm'ity 15 

(V) 


Vi  ANALYSIS   OF   CONTENTS. 

After  action  brought ^5 

Form  of  affidavit  for  rule  to  give  security  for  costs 16 

Form  of  bond  for  costs 18 

Plaintiff  a  Poor  Person 18 

Affidavit  of  poor  person 18 

Form  of 19 

PAKTIES    TO    AN  ACTION. 

By  and  against  whom  brought 19 

Suits  for  the  use  of  another 20 

Against  insane  persons 21 

Against  infants 21 

PROCESS    FOE    APPEARANCE. 

Summons— Form— When  returnable 23 

How  served 22 

Alias  writs 23 

Corporation — How  served 23 

Keceivers — How  served 24 

Trustees  of  railroads — How  served 24 

Privileges  of  defendants 24 

The  return 25 

THE    DECLARATION. 

Its  province 26 

Variance  between  allegations  and  proof 27 

Additional  counts 27 

Time  for  filing 28 

Copy  of  instrument  or  account  sued  on 28 

Continuance : 29 

Dismissal  where  no  declaration  filed 30 

Waiver  of  copy  of  account 30 

With  plea  of  set-off 31 

BiU  of  particulars 81 

CHAPTEE  III. 

DEFENSES  TO  AN  ACTION. 

I.    Motion  to  Quash  and  to  Dismiss 32 

How  made 32 

When  must  be  made 32 

When  writ  will  be  quashed  or  suit  dismissed  on  motion 33 

n.    Pleas  to  the  Jurisdiction  ant)  in  Abatement 34 

Order  of  pleading 34 

Pleas  in  abatement 35 

Requisites  of 35 

When  dilatory  pleas  must  be  pleaded 36 

Statute  in  relation  to  pleas  in  abatement 37 


ANALYSIS    OF    CONTENTS.  Vll 

Premature  action 37 

Variance  between  summons  and  declaration 37 

Amendments  to  cure  matters  of  abatement 37 

Death  of  sole  plaintiff  or  defendant 38 

Of  sole  plaintiff 38 

Of  sole  defendant 39 

Several  parties 39 

Death  of  part 39 

Death  of  all  on  one  side 40 

Pleas  in  abatement 40 

When  to  be  verified 40 

Judgment  upon 40 

By  corporation 41 

Plea  to  the  jurisdiction 41 

Form  of 41 

Plea  of  misnomer 43 

Form  of 43 

Form  of  replication  to 46 

Plea  of  non-joinder  of  party  as  defendant 46 

Form  of. 46 

Form  of  replication  to 47 

Plea  of  non-joinder  of  party  as  plaintiff 48 

Form  of. 48 

Plea  of  misjoinder  of  defendant 49 

Form  of 49 

Plea  of  another  action  pending 50 

Form  of. 50 

Form  of  replication  to — Nul  tiel  record 51 

Form  of  replication  to — New  assignment 51 

in.    Pleas  in  Bar 53 

Defined 53 

Rules  governing 54 

Special  Pleas  in  Bar 55 

Must  answer  all  it  professes  to  answer 57 

Pleas  as  to  a  part 57 

Common  and  special  similiter  to  plea 58 

Form  of  special  similiter 58 

Leave  to  file  pleas — Additional  pleas 58 

Replications  to  Pleas 59 

Form  of  double  replication 59 

Form  of  similiter  to  replication  concluding  to  country 59 

Rejoinder  to  Replications 59 

Form  of  commencement  of 59 

Form  of  conclusion  of  with  verification 60 

Form  of  rejoinder  to  double  replication 60 

IV.    Demurrers 60 

Nature  of 60 

May  be  carried  back 61 


Viii  ANALYSIS   OF   CONTENTS. 

Effect  of 62 

Pleading  over 62 

Waiver  of 62 

May  be  general  or  special 63 

Judgment  upon 66 

Demurrer  to  evidence 66 

Form  of,  to  declaration 67 

jPonH.  of  joinder  in  demurrer 67 

Form  of  general  demurrer 68 

Form  of  demurrer  to  plea  in  abatement 68 

Form  of  joinder  in  demurrer  to  plea  in  abatement 68 

Form  of  demurrer  to  plea  in  bar 68 

Form  of  joinder  in  demurrer  to  plea  in  bar 66 

CHAPTER  lY. 

ASSUMPSIT. 

Nature  of  the  Action 70 

Express  assumpsit ...  70 

Implied  assumpsit 70 

Special  assumpsit 71 

Where  the  action  lies 71 

Consideration  of  contract 74 

Privity  of  contract 75 

Commencement  of  the  action 75 

Precipe 75 

Form  of 75 

Declaration 75 

Form  of  commencement  and  conclusion  of 75 

Indebitatus  Assumpsit— Common  Counts 76 

Form  of  declaration 76 

Form  of  common  counts 76 

I,    Goods  Sold  and  Delivered 76 

II,    Goods  Bargained  and  Sold 76 

III.  Labor  and  Services 76 

IV.  Work  and  Material 76 

V.    Money  Lent 77 

VI.    ]\IoNEY  Expended 77 

VII.    Money  Received 77 

Vin.    Interest 77 

IX.    Account  Stated 77 

X.    Board  and  Lodging 77 

XI.    Hire  of  Horses,  etc 77 

XII.    Stabling  and  Keeping  Horses,  etc 77 

XIII.  Necessaries 77 

XIV.  Physician's  Bill 77 

XV.    Attorney's  Bill 78 


ANALYSIS    OF   CONTENTS.  IX 

XVT.    Warehouse  Room,  etc 78 

Form  of  common  counts  consolidated 78 

Form  of  common  counts  condensed 78 

Observations   upon  Common  Counts 

Money  had  and  received 81 

Money  paid  and  expended 83 

Work  and  materials 84 

Quantum  meruit 84 

Form  of  quantum  meruit  count 85 

Form  of  quantum  valebant  count 85 

Fonn  of  declaration  with  common  counts  by  sui^iving  partner 

tipon  iwomise  to  both  partners 86 

Same — Against  surviving  partner  for  icork  done 87 

Same — Husband  and  ivife  for  tcork,  by  unfe  before  marriage. .     87 
Same — Against  husband  and  wife  for  tvork,  etc.,  done  for  wife 

before  marriage 88 

Same—by  executor  for  work,  etc.,  on  promise  to  testator 89 

Same — Additional  count  on  promise  to  plaintiff  as  executor. . .     90 

Same — By  administrator  on  promise  to  intestate 90 

Special  Counts 91 

Forms  of  declarations  on  promissory  notes 91 

Payee  v.  maker 91 

Same 91 

Same 93 

On  six  notes,  one  count 93 

Indorsee  v.  maker 94 

Indorsee  of  executor  against  maker 96 

Surviving  partner  of  payee  against  surviving  partner  or  maker    96 

Executor  of  payee  v.  maker 97 

Adm.  of  x>ayee  v.  maker 98 

Partners,  payees  v.  partners,  makers 98 

Payee  v.  husband  and  wife  on  note  given  by  ivife  ivhile  sole 99 

Indorsee  v.  indorser,  alleging  institution  and  jirosecution  of 

suit  V.  maker 99 

Suits  against  defendants,  severally  liable  only 102 

Measure  of  damages 102 

Kind  and  degree  of  diligence  required  against  maker 102 

Indorsee  v,  indorser,  suit  v.  maker  unavailing 105 

Indorsee  v.  indorser,  maker  having  left  state 106 

Payee  v.  guarantor 108 

Payee  v,  draioer  on  draft  not  accepted Ill 

Payee  of  check  v.  drawer Ill 

Declarations  on  Inland  Bills  of  Exchange 113 

Drawer  v.  acceptor  on  bill  accepted  generally 113 

Draiver  v.  acceptor  on  acceptance  varying  as  to  time  from  bill  113 
Same  on  bill  payable  to  third  person  andreturned  to  and  taken 

up  by  drawer 114 

Payee  v.  acceptor  on  bill  accepted  generally 115 


X  ANALYSIS    OF    CONTENTS. 

First  or  mhsequent  indorsee  against  acceptor 115 

Payee  v.  draicer  of  bill,  on  default  of  acceptance 116 

Same— Defendant  had  no  effects  in  draioer's  hands 116 

Same— On  defaidt  of  payment 116 

Declarations  on  Warranties 118 

Form  on  irarranty  of  horse,  etc 118 

"      hops  sold  by  sample 119 

Declarations,  Landlords  against  Tenants 131 

Form  for  breach  of  duty,  etc 121 

"      not  keeping  premises  in  repair 123 

Declarations  on  Promise  to  Marry 123 

Form  on  promise  to  marry,  etc 133 

"      same,  etc 123 

"      same,  etc 133 

"      same,  etc 124 

Declarations  against  Bailees,  etc 137 

Form  against  hirer  of  horse,  etc 187 

"      against  carrier,  etc 139 

"      same,  etc 130 

Declarations  on  Contracts  of  Sale 134 

Form  for  not  accepting  goods 134 

"     same,  etc 135 

"     for  not  delivering  goods,  etc 135 

"     same,  etc 136 

Declarations  on  Policies  of  Insurance 137 

Form  on  fire  insurance  policy 137 

"       same,  short  form 140 

raSCELLANEOUS    DECLARATIONS. 

Form  of  on  promise  to  be  accountable  for  goods  sold  to  a  third  person.  142 
Form  of  on  promise  to  pay  money  as  difference  in  exchange  of 

property 143 

Form  of  on  ivritten  contract  for  employment,  plaintiff  discharged 

icithout  cause 143 

Form  of  on  same,  on  verbal  contract  of   employment 144 

CHAPTER  V. 

DEFENSES  TO  THE  ACTION  OF  ASSUMPSIT. 

The  General  Issue 146 

Form  of  plea  of  non-assumpsit 148 

Affidavit  of  merits 149 

Form  of 149 

General  issue,  with  notice  of  special  matters 150 

Form  of  notice  of  set-off,  under  general  issue 151 

Statute  of  Limitations 153 

Wlien  the  statute  begins  to  run 1 54 

New  promise 155 


ANALYSIS    OF    CONTENTS.  XI 

On  foreclosure 157 

Form,  plea  of 157 

"       replication — Cause  of  action  did  not  accrue  withiti  five  years.  158 

*'       replication — Defendant  out  of  state 159 

"       rejoinder  to  same 159 

Infancy 160 

Observations  upon 1 60 

Form  of  plea  of 163 

"      "   replication  denying  infancy 163 

"      "  "  that  goods  were  necessaries 164 

"      "    rejoinder  to  same 164 

"      "    rejjlication,  defendant  confirmed p>roniise ]  64 

"      "    rejoinder  to  same 164 

Statute  of  Frauds 164 

Collateral  and  original  undertakings 166 

Form  of  plea  of,  agreement  not  to  be  pei  formed  in  one  year  and  not 

in  xcriting 169 

Form  of  replication  to  same 169 

"      "  plea  of,  promise  to  answer  for  debt  of  another  and  not  in 

writing 169 

Form  of  replication  to  same 169 

Fraud 170 

Diligence  required  of  maker 173 

"  "         "assignee 173 

Form  of  plea  alleging  fraud  in  obtaining  execution  of  instrument. .  174 

"      "    "     by  surety  that  execution  tvas  obtained  by  fraud 175 

"       "     "     replication 175 

Usury 176 

Observations  upon 176 

Form  of  plea  of 182 

"       "  replication 183 

Set-off 183 

Observations  upon 183 

No  dismissal  after 189 

Form  of  plea  of 189 

"      "  replication— Statute  of  limitations 190 

"       "  "        nil  debet 190 

Release 191 

Observations  upon 191 

Form  of  plea  of 194 

"       "  replication  non  est  factum 195 

Payment 195 

Observations  upon 195 

Form  of  plea  of 197 

"      "  replication  denying  payment ....  198 

Accord  and  Satisfaction 199 

Observations  upon 199 

Form  of  plea  of  delivery  and  acceptance  of  goods 301 


Xil  ANALYSIS   OF   CONTENTS. 

Form  of  replication  denying  delivery  of  goods,  etc 202 

"       "  plea  of— Account  stated,  etc 203 

Arbitrament  and  Award 203 

Observations  upon 203 

Form  of  plea  of 204 

"       "  replication  denying  aivard 204 

«•      "  same 205 

*'      "  rejoinder 205 

Former  Adjudication 205 

Observations  upon 205 

Form  of  plea  of  judgment  recovered 208 

"  replication 209 

Tender 210 

Observations  upon 210 

Form  of  plea  of 213 

"       "  similiter  to  general  issue  and  replication 215 

"       "        "         admitting  the  tender 216 

Pleas  by  a  Surety 216 

Further  time  given  to  principal 216 

Notice  by  surety  to  ci-editor  to  prosecute 219 

Death  of  principal — Diligence  against  estate 221 

Form  of  plea  that  creditor  gave  further  time  without  assent 222 

"      "      "       "        "  was  given  notice  to  sue 222 

Breach  of  Warranty 223 

Observations  upon 223 

Form  of  plea  of 225 

Want  or  Failure  of  Consideration  226 

Observations  upon  226 

Form  of  plea  of  want  of  consideration 227 

"      "     "     "   total  failure  of  consideration 228 

"      "  same,  breach  of  ivarranty 229 

"      "      "     note  given  for  fees 230 

"      "      "        "        "      "    realestate 231 

"      "  p/ea  of  partial  failure  of  consideration 233 

Illegal  Consideration 234 

Observations  upon 234 

Form  of  plea— Money  loon  by  gaming 235 

"      "  replication  to  same 235 

"      •'  plea — Gambling  in  grain 235 

Discharge  in  Bankruptcy 236 

Observations  upon 236 

Form  of  plea  of 238 

Pleas  Denying  Execution  of  Written  Instrument 239 

Observations  upon 239 

Form  of  plea  of 239 

Pleas  Denying  Joint  Liability 241 

Observations  upon 241 

Form  of  plea 241 


ANALYSIS    OF    CONTENTS.  Xlll 

Form  of  same 241 

NuL  TiEL  Corporation 243 

Observations  upon 242 

Form  of  plea  of. 244 

Puis  Darrein  Continuance 244 

Observations  upon 244 

Form  of  plea 247 

CHAPTER  YI. 

ACCOUNT. 

The  statute 248 

Joint  tenants 248 

By  whom  may  be  brought 249 

Compelling  account 249 

Process 250 

Form  of  declaration 250 

Trial — Judgment 250 

Auditors 251 

Hearing  before  auditors — Notice— Default 251 

Administering  oaths — Witnesses 252 

Taking  account — Testimony — Compelling  witness,  etc 253 

Adjusting  accounts— Report — Judgment — Costs 253 

Producing  books — Consolidation  of  accounts 253 

Notice  of  hearing 253 

Continuances — Pleadings — Before  justice 254 

Jurisdiction 254 

Other  provisions  of  statute 255,  256 

Limitations 256 

Demand 256 

Time  for  which  to  be  taken 256 

Declarations  in  the  Action. 

Form,  against  bailiff 257 

"      against  receii^er 257 

"      tenants  in  common 258 

*'      suits  beticeen partners 259 

"      same,  relating  to  land,  etc 260 

Pleas  in  the  Action. 

Form,  never  bailiff 261 

"      never  receiver 261 

•*      in  suits  beticeen  tenants  in  common,  etc 263 

"      same,  fully  accounted 262 

CHAPTER  VII. 

COVENANT. 

Where  the  action  lies,  etc 264 

Covenants  in  deeds,  breaches,  etc 266 


XIV  ANALYSIS   OF   CONTENTS. 

Declarations  in  Covenant 270 

Form,  grantee  v.  grantor,  etc 270 

same,  etc. ,  etc 271 

second  or  remote  grantee  v.  grantor,  etc 273 

on  covenants  in  lease,  etc 273 

apprentice  v.  master,  etc 274 

on  fire  insurance  policy 275 

Defenses  to  the  Action 278 

Pleas  in  abatement 278 

Pleas  in  bar • 278 

Form,  non  est  factum 278 

"      payment,  etc 279 

Pleas  as  to  part,  etc 279 

Plea  to  several  counts  on  same  instrument 280 

Form,  performance 280 

"       in  suit  by  aj^prentice,  etc 281 

(See  observations  following  each  precedent.) 

CHAPTER  YIII. 

TROVER. 

Nature  of  the  action,  etc 282 

Where  the  action  lies 282 

Agatust  an  officer 286 

By  tenant  in  common 286 

By  an  officer 287 

Conversion,  vfhat  constitutes 287 

Demand,  whether  necessary 289 

Essentials  to  support  the  action 290 

Judgment 291 

Commencement  op  the  Action  . .  291 

The  Declaration 291 

Form,  general 292 

"      hy  executor,  etc 293 

defenses  in  trover 295 

Pleas  in  Bar 295 

Form,  not  guilty 296 

"What  plaintiff  must  prove 297 

Damages 297 

(See  observations  following  each  precedent.) 

CHAPTEE  IX. 

REPLEVIN. 

Nature  and  history  of  the  remedy 298 

Where  the  action  lies,  etc 299 

Who  may  maintain  the  action 302 


ANALYSIS   OF   CONTENTS.  XV 

Who  may  be  made  defendants 306 

Demand,  when  necessary 306 

Commencement  of  the  action 306 

Venue 306 

Affidavit 307 

Form  of  affidavit 307 

Bond 308 

Declarations  in 309 

Form,  generally 309 

"      count  in  trover,  etc 309 

Defenses  to  the  Action 310 

Pleas  in,  etc 310 

Form,  non  cepit 310 

"      non  detinuit 311 

"      not  guilty  to  count  in  trover 312 

"      property  in  defendant 313 

"      replication  to  same 313 

' '      property  in  stranger 314 

"      replication  to  same 314 

♦'     justification  by  officer  under  execution 315 

"      lien  on  property,  etc 317 

"      property  held  as  pledge,  etc 317 

"      avowry,  etc.,  for  rent 318 

"     plea  in  bar  to  avowry,  etc 318 

"      same,  no  rent  in  arrear 319 

Judgment  for  plaintiff 319 

Judgment  for  defendant — Retorno  habendo 320 

(See  observations  following  each  precedent.) 

CHAPTER  X. 

TRESPASS. 

Nature  of  the  action,  etc 331 

Distinction  between  trespass  and  case  aboHshed 323 

Injuries  to  the  Person 323 

Where  the  action  lies  for 232 

Injuries  to  Personal  Property 327 

Where  the  action  lies  for 327 

Against  an  officer 325 

Who  may  maintain  the  action 330 

Against  whom  it  lies,  etc 332 

Injuries  to  Real  Property 332 

Where  tire  action  lies  for 332 

c0m3iencement  of  the  action 838 

The  Declaration,  etc 338 

Matter  or  tiling  affected 338 

The  plaintiff's  right  or  interest 339 


XVI  ANALYSIS    OF   CONTENTS. 

Statement  of  the  injury 340 

The  damages 342 

Pleasure  of 343 

Vindictive,  etc 343 

Joinder  of  counts 344 

For  Injury  to  the  Person. 

Form,  for  assault,  etc 344 

"     for  common  assault 345 

"      same,  tcith  pistol 346 

((     j'Qy,  riding,  etc. ,  against  plaintiff , 346 

"      by  husband  and  wife,  etc 346 

"     false  imprisonment,  etc 347 

"     same,  etc 347 

"     for  debauching  plaintiff's  daughter 348 

"     for  criminal  conversation 348 

For  Injury  to  Personal  Property. 

Form  de  bonis  asportatis 349 

"     for  chasing  cattle,  etc 349 

"     for  chasing  mare,  etc 349 

"     for  driving  carriage  against  plaintiff's — Injury,  etc 350 

"     for  lining  plaintiff's  horse 350 

"     for  shooting  plaintiff's  dog 351 

*'     against  constable,  imder  the  statide,  for  taking  exempt  prop- 
erty   351 

For  Injuries  to  Real  Property. 

Form,  for  breaking  into  dwelling,  etc 353 

"     for  common  expidsion 353 

"     for  entering  close,  etc 353 

"     for  cutting  and  cai^rying  away  trees 354 

"     for  digging,  etc,  in  coal  mine 355 

"     for  mining  ore,  etc 355 

Defenses  to  the  Action 355 

Pleas  in  Bar,  etc 355 

Form,  pleanot  guilty 357 

"      son  assault  demesne 358 

"     same,  etc. ,  etc 359 

"      replication  de  injuria,  etc 359 

New  assignment,  etc 361 

Form,  lilea,  molHter  manus  imposuit,  etc ,  331 

"     same,  etc,  etc 363 

"     justification  by  teacher,  etc 363 

"     justification  by  J.  P.,  etc 364 

"     same  by  officer  making  an  arrest 364 

"      same,  etc,  etc 365 

"      same  by  private  person,  etc 367 

••      by  sheriff  justifying,  taking  goods  under  execution 367 

"      replication  to lileas  of  jxistification,  etc.,  etc 369 

"     plea  that  injury  was  caused  by  plaintiff's  negligence,  etc. . .  370 


ANALYSIS   OF   COXTENTS.  XVll 

Form,  plea  of  license 370 

"      replication  to  same 370 

"      liberuin  tenenientum 373 

"      replication  denying,  etc 373 

"     new  assignment 374 

(See  observations  following  each  precedent.) 

CHAPTER  XL 

ATTACHMENT. 

Proceedings  in 375 

Nature  of  proceeding 375 

Where  it  lies,  etc 376 

Commencement  of  the  Proceeding,  etc 377 

By  affidavit,  etc 377 

Form  of  affidavit 377 

Traversing  affidavit 378 

Amendments 379 

Wliere  suit  to  be  brought 379 

Plaintiff  required  to  give  bond 380 

Against  joint  debtors 380 

Execution  of  the  writ,  etc 381 

Service 381 

Certificate  of  levy 381 

Eeturn 381 

The  Declaration,  etc 382 

Garnishees = 382 

Notice  to  Defendant  by  Publication 383 

Default— Continuance 383 

Defenses  to  the  Proceeding 384 

Form  of  plea  in  abatement  traversing  affidavit 384 

Practice  and  Pleading  in 385 

Forthcoming  bonds,  etc 386 

Bond.  etc. ,  for  return  of  property 387 

Interpleader  by  Third  Party 387 

Form,  Interpleader 388 

A'lTACHMENT  IN  AID  OF  SUIT  PENDING. 388 

Form  of  affidavit  in  aid,  etc 389 

"  same,  in  case  of  tort,  etc 390 

"         order  of  judge  for 390 

Service 390 

Judgment  where  there  is  no  personal  service 390 

Sale  of  property  on  execution 391 

Division  of  proceeds,  etc 391 

Division  by  the  sheriff,  etc 393 

Proceeds  brought  into  court 392 

Garnishment 393 

Form  of  affidavit  for,  etc.,  on  judgment,  etc 393 

2 


XVlll  ANALYSIS    OF    CONTENTS. 

Service  and  return  of  summons 393 

Interrogatories  and  Answers 393 

Form,  interrogatories  to  garnishee 394 

"      ansicer  of  garnisJiee 395 

Plaintiff  may  contest  the  answer 395 

Garnishee  may  deduct  demands 396 

Other  claimants  of  effects  in  hands  of  garnishee 397 

Garnishee  may  contest  proceedings,  etc 398 

What  is  subject  to  garnishment 398 

Non-resident  garnishee 401 

Conditional  Judgment 401 

Final  Judgment 401 

Death  of  Garnishee,  etc.,  etc 402 

Effect  of  Judgment  against  Garnishee 402 

When  debt  of  garnishee  is  not  due,  etc 402 

Form  of  judgment  against  garnishee 402 

Effect  of 402 

Death  of  garnishee 402 

Execution  stayed  when  debt  not  due 402 

Attachment  of  Water  Crafts 403 

For  what  lien  is  given 403 

Lien  on  goods  for  freight 404 

Limitation  of  proceeding 404 

The  Petition  for  Enforcement  of  Lien 404 

Form  of  petition  for  attachment,  etc 404 

"      same,  etc.,  etc 405 

Bond  to  be  filed,  etc 405 

Notice  by  publication 405 

Intervening  creditors 406 

Bonding  vessel 406 

Appraisement — Restitution— Sale 406 

Answer — Affidavit  of  Merits— Default 406 

Judgments— Order  of  Sale 407 

Amendments 407 

Distribution,  etc 407 

Jurisdiction  of  state  and  federal  courts 407 

Prior  liens 408 

(See  observations  following  each  precedent.) 

CHAPTEE  XII. 

EJECTMENT. 

Action  of 409 

Nature  of  the  action,  etc 409 

When  the  action  lies,  etc 409 

Title  necessary  to  sustain 411 

By  landlord  against  tenant 413 


ANALYSIS    or    CONTENTS.  XIX 

Who  may  maintain  the  action 413 

Against  whom  to  be  brought 414 

Suit  against  tenant 415 

Commencement  of  the  Action 416 

The  Declaration 416 

Form,  generally 417 

"     hy  several  persons,  etc.,  etc 417 

Defenses  to  the  Action 418 

Foiin,  plea  not  guilty 419 

Claim  for  Mesne  Profits 420 

Form,  suggestion  of  claim  for  mesne  profits 421 

Defense  to  claim  for  same 421 

Form,  plea  non-assumpsit,  thereto 422 

New  trial  under  statute 422 

Kevival  of  judgment 424 

Common  source  of  title 424 

(See  observations  following  each  precedent.) 

CHAPTER  XIII. 

DEBT,  ACTION  OF. 

Where  the  action  lies 425 

Penal  actions  under  statute. 428 

Commencement  of  the  Action 430 

Form,  prtecipe  for  summons 430 

Declarations  in 430 

Precedents  of 434 

Form,  indebitatus  count 434 

"    on  promissory  note,  etc 436 

"    on  bill  of  exchange 438 

"    on  axvard,  etc 438 

"    on  judgment  in  same  court 440 

"    same,  of  another  state 440 

"    same,  of  justice  of  the  peace,  etc 442 

"    in  action  for  rent,  etc 443 

"    on  hill  or  sealed  note 443 

Profert,  when  necessary 444 

Actions  on  Penal  Bonds,  Statutory,  etc 444 

Judgments,  etc.  in  Actions  on  Penal  Bonds 445 

Declarations  upon  Penal  Bont)S,  etc 445 

Form,  on  appeal  bond,  etc 445 

"    on  replevin  bond,  etc 448 

"    same,  etc 45O 

"    on  sheriffs'  bond,  etc 453 

"    on  guardian's  bond 457 

"     same,  etc. ,  etc 459 

•'    on  administrator's  bond 461 

"    devastavit,  how  alleged 464 


XX  ANALYSIS    OF   CONTENTS. 

Form  on  attachment  bond 468 

"    on  injunction  bond 469 

"    on  dram  shop  license  bond,  etc 475 

"    on  statute,  dram  shop  act,  etc 476 

•'    on  statute,  cutting  trees,  etc 477 

'*    on  statute,  against  drover,  etc 480 

Exceptions  and  provisions  in  statute 481 

Form,  on  statide,  against  sheriff  not  admitting  counsel  to  prisoner.  482 

"    on  statute,  landlord  v.  tenant,  for  double  rent 483 

To  recover  delinquent  taxes 484 

Against  railroad  companies 485 

Against  county  clerk 486 

Defenses  to  the  Action 486 

Pleas  in  Abatement 486 

Pleas  in  Bar 486 

Form,  nil  debet 487 

"      non  est  factum 489 

"      non  est  factum  and  nil  debet,  etc 490 

"      non  est  factum,  after  craving  oyer,  etc 490 

Special  non  est  factum 491 

Form,  escrow,  etc 493 

"    onerari  non 493 

"     tender,  etc 494 

"    nul  tiel  record 494 

"    replication  to  nul  tiel  record 496 

"    plea  of  duress,  etc 497 

"    replication  to  same 497 

"    plea  of  set-off,  etc 498 

'*    payment,  etc 498 

"    failure  of  consideration,  etc 499 

"    performance  generally 499 

"    non  danmificatus  500 

"    no  rent  in  arrear,  etc 501 

"    no  airard  made 501 

"    plea  of  eviction 501 

"    replication  denying  same 502 

"    on  replevin  bond,  merits  not  tried,  property  in  defendant 502 

"    former  conviction,  etc 503 

Demurrer  after  craving  oyer. 504 

(See  observations  followino  each  precedent.) 

CHAPTEH  XIY. 

HABEAS  CORPUS. 

History  of  the  remedy,  etc 505 

When  writ  will  be  granted,  etc 507 

By  whom  application  for  may  be  made 509 


ANALYSIS    or    CONTENTS.  XXI 

To  ^ehom  it  may  be  made ...  510 

Petition  for,  etc 511 

Form  of  petition,  etc 512 

"      of,  same,  etc.,  etc 513 

"      of  parent  for  child,  etc 513 

"     peh7io>ier  held  by  ca.  ad  res.,  etc 513 

*'      ad  testificandum,  etc 514 

Allowing  and  Issuing  of  the  Writ 515 

Form  of  order  by  master  in  chancery 515 

"      general,  of  the  ivrit 515 

Indorsem^ent  of  writ 515 

Service  of  the  writ,  etc 515 

Expenses  of,  etc 516 

Return  of,  etc 516 

Precedence  given  to  writ 517 

Form,,  return  of  lorit,  etc 517 

"       same,  denying  custody,  etc 517 

"       same,  by  private  person,  etc 518 

Examination,  etc.  ,  etc 518 

Denial  of  return,  etc 518 

Causes  for  discharge 518 

Form,  order  of  discharge,  in  vacation 520 

*'       order  remanding  prisoner,  etc 521 

"       order  of  discharge,  in  term 521 

"       order  remanding,  etc.,  etc 521 

(See  observations  following  each  precedent.) 

CHAPTER  XY. 

SCIRE  FACIAS. 

Nature  of  the  %vi-it,  etc 523 

To  Make  Party  to  a  Judgment 524 

Against  garnishees,  etc 524 

To  revive  a  judgment 525 

Form  of  prgecipe/o?- 526 

"     of,  to  revive  judgment 526 

"      same,  in  ejectment 527 

On  Mortgages,  Statutory 528 

Form  of,  to  foreclose  mortgage 530 

"     same,  etc.,  etc 581 

On  Recognizances,  Statutory .^iSS 

Form  of  scire  facias  upon  recognizance 533 

Defenses  to  Scire  Facias,  etc 536 

What  a  defendant  may  plead 536 

(See  observations  following  each  form.; 


XXU  ANALYSIS   OF    CONTENTS. 

CHAPTER  XVI. 

MANDAMUS. 

Nature  and  purpose  of  the  writ 539 

Award  of,  discretionary 539 

Purpose  of  writ 539 

When  will  lie , 542 

When  will  not  lie 544 

Jurisdiction  given,  in  what  courts 544 

The  relator,  etc 545 

Proceedings,  summons 545 

Demand  necessaiy,  etc 546 

Petition  for,  etc 547 

Requisites  of 547 

Summons  to  issue,  etc 547 

Default,  answer,  etc 547 

Time  to  plead,  etc 548 

Pleadings,  etc 548 

False  Return,  Damages,  etc 548 

Judgment,  etc.  ,  etc 548 

Making  New  Defendants,  etc 548 

Death  of  Defendant,  etc 548 

Effect  of  other  Remedies,  etc 548 

Form,  petition  for  ivrit 549 

Defenses  to,  etc 551 

Answer  or  pleas 551 

Form,  answer  to  petition 553 

"      plea  to  petition 554 

(See  observations  following  each  precedent.) 

CHAPTER  XYII. 

CERTIORARI. 

The  Common  Law  Writ 555 

Its  nature  and  purposes 555 

The  Statutory  Writ,  etc 558 

Its  nature  and  purposes 558 

The  Petition,  etc 560 

Requisites  of,  etc 560 

Form  of  petition  for,  etc 562 

(See  observations  following  each  precedent.) 

CHAPTER  XYIIL 

QUO  WARRANTO. 

Nature  of  the  writ,  etc 565 

The  Proceedings  by  Information. 

Jurisdiction  of  Circuit  Courts 566 


ANALYSIS    OF    CONTENTS.  XXIU 

Practice 566 

When  leave  to  file  will  be  granted 566 

When  leave  to  file  wiU  not  be  granted 567 

Limitations 567 

When  will  lie 568 

Statutory  Proceedings,  etc. 

Parties 573 

Motion  for  leave  to  file  iaif orniation 573 

Form  of  information 573 

Summons  to  be  issued,  etc 574 

Service  of  the  same 574 

Defendant  required  to  plead,  etc 574 

Burden  of  proof 575 

Time  allowed  to  plead 575 

Judgment  in  Nature  of,  etc 575 

Appeaxs  and  Writs  of  Error,  etc 576 

Process 576 

The  Information. 

Form  of,  by  attorney  general,  etc 576 

"      of,  at  instance  of  relator,  etc 577 

Amendments 578 

Defenses  to  the  Proceeding 579 

Pleas  to,  etc 579 

Form  of  plea  by  corporation,  etc.,  etc 580 

"      of  plea  by  person,  etc 580 

Replications  to  pleas,  etc 581 

Authorities 581 

(See  observations  following  each  precedent.) 

CHAPTER  XIX. 

ARBITRATION  AND  AWARD. 

Nature  of  the  proceeding,  etc 583 

Statutory  Submission 583 

In  Suit  Pending 583 

Proceedings  by  arbitrators 583 

Oath  by  arbitrators 584 

Subpoenas  for  witnesses — swearing  witnesses 585 

The  hearing 585 

The  award — publication  of 586 

Prima  facie  an  award  is  valid 588 

Either  party  not  complying,  award  may  be  filed  in  court,  etc 588 

Judgment  upon  award 588 

Enforcement  of  an  award 589 

Award,  when  set  aside 589 

For  fraud 590 

For  mistake 593 

Award  prepared  by  attorney  for  one  of  the  parties 593 


XXIV  ANALYSIS    OF   CONTENTS. 

Signing  of  the  award 593 

When  court  may  correct  award 593 

When  motion  to  set  aside  or  modify  must  be  made 594 

Error  and  appeals 594 

Compensation  of  ai'bitrators 594 

Fees  of  witnesses,  etc 594 

Arbitrators  may  be  compelled  to  act 595 

Record  of  reference 595 

In  Controversies  not  in  Suit 595 

Statutory'  provisions  relating  to 595 

Construction  of  the  statute 595 

Proceedings  under  section  16 596 

Award  under  section  16 596 

Common  Law  Submission 596 

Differs  from  statutory  submission 596 

How  submitted 597 

Revocation  of  submission 598 

W^ho  may  be  arbitrators 599 

General  powers  and  duties  of  arbitrators 600 

Recommitting  an  award 601 

Forms  of  Submission,  etc 601 

Form,  agreement  to  submit  in  suit  pending 601 

"       same,  each  party  to  select  one  arbitrator,  and  the  court  the 

third 603 

"       order  referring  suit  pending,  to  arbitrators 602 

"       oath  of  arbitrators 603 

"       aivard  in  suit  pending 603 

"       agreement  of  submission  of  a  eontrorersy  not  in  suit 603 

"       award  in  a  controversy  not  in  suit  (statutory)  under  Sec.  16.  603 
"       general  agreement  for  submission  of  all  matters  in  contro- 
versy (Com.  Law) 604 

"       agreement  for  submission  of  particular  matters  in  contro- 
versy (Com.  Law) 604 

"       arbitration  bond,  given  by  each  party  to  the  other 605 

"       award  on  common  law  submission,  by  single  arbitrator 605 

"       same,  by  three,  or  more  or  less,  arbitrators 605 

CHAPTER  XX. 

CONFESSION  OF  JUDGMENT. 

In  Illinois 606 

Practice 606 

The  declaration 606 

Warrant  of  attorney 606 

Form,  proof  of  tcarrant  of  attorney 607 

The  cognovit 607 

Form,  cognovit 608 

In  term  time 608 


ANALYSIS    OF    CONTENTS,  XXV 

In  vacation — Power  of  clerk 609 

When  may  be  taken  before  maturity 610 

Attorney  fees 610 

Confession  by  a  partner 610 

By  corporation ; 611 

By  an  infant 611 

In  cases  of  tort 611 

Sureties 611 

Vacating  judgment 612 

Limitations 614 

Power  to  confess  in  lease 614 

In  forcible  detainer 615 

Appeal 615 

Vacation,  what  is 615 

CHAPTER  XXL 

DISTRESS  FOR  RENT. 

Nature  of ,  etc 616 

Landlord's  lien,  statutory,  etc 616 

What  may  be  distrained 617 

Form,  distress  warrant 619 

Return  of  warrant,  inventory 620 

Form,  inventory  to  be  filed,  etc 620 

Summons  to  be  issued 620 

Notice  to  non-residents,  etc 620 

Form,  affidavit  for  publication 621 

Proceedings — Pleadings  621 

Defenses— Set-oflf,  etc 621 

Judgment  for  plaintiff 622 

Where  there  is  no  personal  service 623 

Judgment  for  defendant 623 

Release  of  property  distrained,  etc 623 

Perishable  property 623 

Rights  against  sub-lessees 624 

CHAPTER  XXII. 

CASE,  ACTION  ON. 

Nature  of  the  action,  etc 625 

Where  the  action  lies,  etc 625 

Negligence 631 

Commencement  of  the  Action 633 

Declarations  in  Case 633 

In  what  countj"  suit  may  be  brought  v.  R.  R.  Co 637 

Form,  negligence  of  R.  R.  Co.  in  crossing  highu-ays,  etc 633 

"      on  Statute  v.  R.  R.  Co.  for  not  ringing  bell,  etc 637 


XXVI  ANALYSIS    OF    CONTENTS. 

Form,  against  street  railioay  Co.  for  negligence,  etc 638 

"      V.  R.  R.  Co.,  for  negligence  in  managing  train,  etc 639 

"      V.  same,  damages  from  engine 640 

"      same,  second  count 640 

"      V.  same,  on  statute  for  not  fencing  its  road 643 

"      same,  second  count 643 

"      V.  same,  by  administrator  for  causing  death,  etc 647 

"      V.  City,  for  neglect  to  keep  sideivalk  in  repair,  etc 649 

"      for  keeping  vatdt  uncovered,  etc 651 

*'      V.  defendant  for  obstructing  natural  floio  of  water 653 

"      V.  proprietor  of  stage  coach  for  negligence,  etc 653 

"      for  keeping  vicious  dog,  etc 654 

"      for  malicious  prosecution 655 

"      same  second  count 656 

"      for  criminal  conversation 660 

"      for  debauching  plaintiff's  daughter 661 

"     for  deceit  in  obtaining  goods  on  credit 663 

*'      for  deceit  in  sale  of  horse 664 

*'      same,  in  sale  of  wool,  etc 665 

"      V.  Commissioners  of  Highways  for  flooding  land 666 

"      for  setting  fire  to  prairie 667 

*'      V.  sheriff  for  taking  insufficient  sureties  in  replevin 667 

"      for  over-loading,  etc.,  horse 668 

"      V.  physician  for  malpractice 669 

"      V.  attorney  for  negligence,  etc. .' 670 

"      Y.  R.  R.  Co.  as  carrier  for  negligence,  etc 671 

"      V.  saloon-keeper  under  the  statute,  causing  intoxication  and 

death  of  plaintiff's  husband,  etc 673 

"      V.  landlord  of  dram  shop,  etc.,  under  the  statute,  for  injury 

caused  by  intoxicated  person,  etc 673 

In  Case  for  Slander  and  Libel 678 

What  amounts  to  slander 678 

Where  the  action  lies  for,  etc 678 

Declarations  for  Slander  and  Libel 685 

Form,  for  slander,  etc 690 

"      words  charging  fornication,  etc 691 

"      words  charging  perjury 691 

*'      same,  second  count 693 

*'      for  words  charging  larceny 693 

•'     for  words  in  foreign  language 693 

"     for  words  imputing  insolvency,  etc 694 

"      for  libel  in  newspaper 695 

"     for  libel  in  letter,  imputing  insolvency,  etc 696 

Defenses  to  the  Action  of  Case 698 

Pleas  in  Bar,  etc 699 

Form,  not  guilty 699 

Special  pleas  generally 699 

General  issue  in  actions  for  slander,  etc 700 


ANALYSIS    OF   CONTENTS.  XXVll 

Special  pleas  in  actions  for  slander,  etc 702 

Form,  justification,  etc 703 

' '      replication  de  injuria 704 

"      justification,  etc 705 

(See  observations  following  each  precedent.) 

CHAPTER  XXIII. 

AMENDMENTS. 

Reform  in  the  Practice,  by 706 

Amendments  generally 706 

Amendments  before  judgment 708 

Terms  upon  which  allowed 709 

Of  executions  when  allowed 709 

Of  returns  of  process,  when,  etc 709 

Of  records,  etc 7 1 0 

Of  pleadings  in  vacation,  etc 712 

Of  process  out  of  term,  etc 712 

Of  errors  in  fact,  after  judgment 712 

Writ  of  coram  nobis  abolished 712 

Other  statutory'  provisions 713 

Changing  cause  from  law  to  chancery 713 

Judgments  after  term 714 

Bills  of  exceptions 714 

Defects  cured  by  pleading  to  the  merits 714 

Defective  pleading  cured  by  verdicts 714 

Trial  without  issue  joined 715 

Authorities 715 

CHAPTER  XXIV. 

CONTINUANCES. 

How  and  when  applied  for 716 

For  want  of  testimony,  etc 716 

Form  of  affidavit  for,  etc 717 

By  Reason  of  Amendment,  etc 722 

For  Want  of  Declaration,  etc 722 

Defendant  in  Military  Service 723 

Party  or  Counsel  in  Legislature 723 

On  Remanding  Cause  from  Supreme  or  Appellate  Court 723 

Terms  may  be  Imposed 723 

By  Operation  of  Law 724 

CHAPTER  XXY. 

JURY. 

Right  of  Trial  by 725 

Who  are  Competent  Jurors 726 


XXVlll  ANALYSIS    OF   CONTENTS. 

Who  are  Exempt,  as 726 

Challenges  of  Jurors 727 

To  the  array 727 

To  the  polL 728 

For  cause 728 

Pereniptorj^  etc 731 

Polling  the  Jury 732 

CHAPTER  XXYL 

ARREST  OF  JUDGMENT. 

When  it  will  or  will  not  be  arrested 733 

Time  and  manner  of  moving  in  arrest 736 

CHAPTER    XXVII. 

BILES  OF  EXCEPTIONS. 

Objections  to  decisions  of  court  preserved  by,  etc 737 

When  exceptions  must  be  taken 739 

Signing  and  sealing  of  the  bill,  etc 739 

What  the  bill  should  contain,  and  when  necessary 741 

Form  of  bill  to  evidence,  instructions,  etc 746 

"      same,  refusal  to  grant  a  continuance 747 

CHAPTER  XXYIII. 

AGREED  CASES— QUESTIONS  OF  LAW  CERTIFIED. 

Agreed  Cases 748 

Certified  to  Supreme  or  Appellate  Court 748 

Statutory  provision,  etc 748 

Agreed  case  must  not  be  feigned 748 

Must  first  be  decided  in  trial  court 748 

Questions  of  Law  Certified 749 

Judges  may  certify 749 

Statutory  provisions 749 

Exceptions  to  statutory  provisions 749 

What  certificate  must  contain 749 

Form,  agreed  case  betioeen  parties  in  suit  pending 750 

' '        decision  of  court  upon  an  agreed  case 750 

"       agreement  that  judge  may  certify  questions  of  law 751 

*'       agreement  as  to  questions  of  law 752 

*'       certificate  of  judge  of  questions  of  law,  etc. ,  etc 752 

"       agreement  as  to  questions  of  law  arising  in  the  case 753 

"       decision  of   the  judge  upon  the  questions    of  law  arising 

in  case  finally  determined 755 

Rule  20  of  Supreme  Court  relating  to  agreed  cases 756 

Form,  affidavit  as  to  good  faith 756 


ANALYSIS    OF   CONTENTS.  XXIX 

CHAPTER  XXIX. 

REFEREES. 

Referring  causes  by  agreement 757 

Power  of  court  discretionary 757 

Proceedings  must  conform  to  the  statute 757 

Oath  of  referee 758 

Report  of  referee 758 

Exceptions  taken  thereto 758 

When  to  be  made 758 

Witnesses  required  to  attend 759 

Referee  may  administer  oaths 759 

Judgment  upon  report 759 

Referee's  fees,  costs,  etc 759 

Testimony  taken  to  be  reported,  etc 759 

Shall  form  part  of  record 759 

Form,  agreement  to  refer 759 

"      order  appointing  referee 760 

"      report  of  referee,  for  plaintiff. 760 

"      report  of  referee,  for  defendant 760 

"      exceptions  to  report 760 

CHAPTER  XXX. 

ATTORNEYS  AND  COUNSELORS  AT  LAW. 

Nature  of  the  office,  etc 762 

How  admitted 762 

Qualifications 763 

Authority  of  Attorneys,  etc 764 

It  can  not  be  delegated 766 

Retainer,  etc 767 

Agreements  made  by  for  client,  etc 767 

Admissions  by,  etc 768 

Termination  of  employment 768 

Duties  and  Liabilities 768 

Duty  to  court 769 

Ought  not  to  be  witness  for  client,  etc 769 

Acting  in  another  capacity 770 

Can  not  act  on  opposite  sides 770 

Liability  to  third  person 771 

Dealings  between  attorney  and  client 771 

Assigned  by  court  to  defend  prisoners 773 

Rights  and  Privileges  773 

Privileged  communications 773 

Fees,  etc 774 

Lien  of ,  etc 774 

Change  of  attorney 775 


XXX  ANALYSIS   OF    CONTENTS. 

CHAPTEE  XXXI. 

CHANGE  OF  VENUE. 

When  same  may  be  had,  etc 776 

Interest,  etc .,  of  judge 776 

Prejudice,  etc. ,  of  inhabitants,  etc 777 

Notice  of  application,  etc 777 

Form  of  notice 777 

The  Petition  for,  etc 777 

Form,  prejudice  of  judge,  etc 778 

"      prejudice  of  inhabitants 778 

When  application  may  be  made 778 

By  whom  made 779 

Part  of  plaintiffs  or  defendants 779 

Order,  granting  in  vacation 779 

Terms  and  conditions 779 

C'osts  of  the  change 780 

When  to  be  paid 780 

Transcript,  Papers,  etc 780 

To  What  Court  Changed,  etc 780 

Docketing  cause,  etc 781 

Irregularities  waived,  etc 781 

Criminal  cases 781 

To  what  judge 782 

CHAPTER  XXXII. 

SUBMISSION  TO  JUDGE. 

Statute  relating  thereto 783 

Submission  to  be  oral 783 

Without  formal  pleadings 783 

Agreement  to  submit  to  be  in  writing 783 

Form,  agreement  to  submit 783 

Judge  to  determine  such  controversies  in  summary  manner 784 

Judgment  or  decree  to  be  final  and  conclusive 784 

No  appeal  allowed  therefrom 784 

All  matters  either  in  law  or  equity  may  be  submitted 784 

CHAPTER  XXXIII. 

NEW  TRIALS. 

Grounds  for  Granting  New  Trials 785 

Misbehavior  of  party  prevailing 785 

Mistakes  or  misconduct  of  jury,  etc 786 

Verdict  against  the  law  and  evidence 787 


ANALYSIS    OF    CONTENTS.  XXXI 

Excessive  or  inadequate  damages 788 

Admitting  improper  or  refusing  proper  evidence 789 

Error  in  the  ciiarge  to  the  jury 790 

Newly  discovered  evidence 792 

Absence  or  mistake  of  witnesses 793 

Surprise,  etc 794 

Death  of  trial  judge 795 

Improper  remarks  of  counsel 795 

Statutory  provisions 796 

New  trial  by  agreement 797 

Mode  of  Applying  for  New  Trial 797 

Form  of  motion  for 797 

Setting  aside  Default,  and  Granting  Trials  on  Merits 798 

CHAPTER  XXXIY. 

EVIDENCE. 

Mode  of  Procuring,  etc 801 

Documentary  Evidence 801 

Form,  notice  to  produce  on  trial 802 

Production  of  books  and  writings 803 

Books  of  account  as  evidence 804 

Oral  Testimony  of  Witnesses,  etc 806 

Attendance  of  witness,  how  procured 806 

Form,  praecipe  for  subpoena  for  witnesses 806 

Tender  of  fees,  when  required 807 

Habeas  corpus  ad  test 807 

Depositions 807 

When  they  may  be  taken 807 

Witnesses  residing  in  another  county,  etc 808 

Form,  affidavit  to  be  filed,  etc 808 

* '       notice  to  be  given,  etc 809 

Of  witness  residing  in  state,  non-resident  witnesses,  etc 810 

Form,  of  notice  and  interrogations,  etc 811 

Of  non-resident  witnesses  upon  oral  interrogatories 812 

Notice  by  mail,  etc 813 

Instructions  for  Taking  Depositions 814 

Form,  of  caption,  etc 814 

"    of  certificate,  etc 815 

Exceptions  or  objections  to 818 

(See  observations  following  each  form.) 

CHAPTER  XXXY. 

JUDGMENTS. 

Nature  and  effect  of ,  etc 820 

Interlocutory  or  final 820 

By  default goj 


XXXii  ANALYSIS   OF    CONTENTS. 

Assessment  of  damages  upon 823 

Writ  of  inquiry 822 

By  the  court 823 

By  the  clerk 823 

Either  party  may  require  jury 824 

Of  non-suit,  etc 824 

Eilect  of,  etc 824 

Judgment  on  demurrer 825 

Judgment  on  verdict 825 

Forms  of  judgments,  etc 825 

After  death  of  defendant 827 

CHAPTER  XXXVI. 

TRIAL  OF  RIGHT  OF  PROPERTY— INTERPLEADER    IN  ATTACH- 
MENT. 

History  of  proceeding 828 

Proceedings  for 829 

Trial  in  County  Court 830 

Notice 830 

Service— Continuance 830 

Notice  by  publication 831 

Entry  of  appearance 831 

Trial— Pleading— Jury 831 

Trial  by  jury 831 

Subpoenas 832 

Judgment— Exempt  property— Costs 832 

Appeal— Trial  de  novo 832 

Judgment— Indemnity , 832 

Apportionment  of  costs 833 

Form  of  notice  to  sheriff 833 

Interpleader  in  Attachment 834 

CHAPTER  XXXYII. 

TRIAL  AND  VERDICT. 

Wlio  may  open  the  case 838 

Order  of  proceedings  on  the  trial 838 

Deliberations  of  the  jury 841 

Delivery  of  the  verdict 842 

Verdicts,  etc 843 

General  verdict,  etc 843 

Special  verdict,  etc 844 

Special  findings 844 

Trial  by  Court 846 

Propositions  of  law 846 

Form  of  submission  of 848 


PUTERBAUGH'S 

COMMON  LAW 

Pleading  ajstd  Pkactioe. 


CHAPTER  I. 
GENERAL  PRINCIPLES  OF  PLEADINGS. 

Object  of — Term  defined. — The  important  object  to  be 
attained  in  pleading  is  to  bring  the  subject-matter  of  conten- 
tion in  an  action  to  an  issue — to  a  point  where  a  matter  is 
affirmed  on  one  side  and  denied  on  the  other — to  render  the 
facts  in  each  party's  case  plain  and  intelligible,  and  to  refer 
the  points  at  issue  to  the  court  and  jury,  with  all  possible  sim- 
plicity, for  their  decision. 

Outside  of  the  profession,  the  term  pleading  is  most  generally 
understood  to  be  the  forensic  argument  in  a  case;  it  is,  how- 
ever, the  statement,  in  a  plain,  logical  and  legal  form,  of  those 
facts  which,  in  law,  show  the  justice  of  the  demand  made  by 
the  plaintiff,  or  the  discharge  and  defense  of  the  defendant. 
It  is  the  formal  mode  of  alleging  that  on  the  record  which  is 
the  basis  of  the  action,  or  the  ground  of  defense. 

The  common  law  system. — The  common  law  system,  which 
is  retained  and  practiced  in  many  states  and  territories  of  the 
Union,  is  one  of  great  antiquity. 

Anciently,  all  pleadings  were  delivered  orally,  and  in  open 
court,  and  were  contemporaneously  entered  on  the  record. 
This  mode  was  in  use  in  the  reign  of  Henry  III.  In  later 
times  the  pleader  entered  his  statement  in  the  first  instance 

(1) 


25  GENEKAL    PRINCIPLES    OF    PLEADINGS. 

upon  the  parchment  roll  on  which  the  record  was  formerly 
drawn  up;  the  opposite  party,  having  access  to  this  roll,  entered 
his  answer  in  the  same  manner,  and  so  on,  until  an  issue  was  pre- 
sented; and  the  roll  thus  formed  the  record  of  the  cause.  This 
method  bein<y  attended  with  many  inconveniences,  the  expe- 
dient was  at  length  adopted  of  putting  the  pleadings  first  on 
paper,  and  filing  them  in  the  proper  office  of  the  court. 
Written  pleadings  are  supposed  by  many  writers  to  have  been 
introduced  in  the  reign  of  Edward  III.  The  abandonment  of 
the  practice  of  oral  pleading  led  to  no  departure  from  the 
ancient  style  of  allegation.  The  pleadings  have  ever  since 
continued  to  be  framed  upon  the  same  principles,  and  pursue 
the  same  forms,  as  when  they  were  merely  oral.  The  parties 
are  made  to  come  to  issue  exactly  in  the  same  manner  as  when 
really  o]iposed  to  each  other  in  verbal  altercation  at  the  bar 
of  the  court;  and  all  rules  which  the  judges  of  former  times 
prescribed  to  the  actual  disputants  before  them  are,  as  far  as 
possible,  still  enforced  with  respect  to  these  paper  pleadings. 

Pleading  is  said  to  have  been  first  methodically  formed,  and 
cultivated  into  a  science,  in  the  reign  of  Edward  I.  From  that 
time,  the  judges  began  to  prescribe  and  enforce  certain  rules 
of  statement,  of  which  some  had  been  established  at  periods 
considerably  more  remote,  and  others  apparently  were  then, 
from  time  to  time,  first  introduced.  The  science  continued  to 
advance  till  the  reign  of  Henry  YI.  and  Edward  TV.,  when  it 
was  "  cultivated  with  so  much  industry  and  skill,  that  it  w^as 
raised  to  a  sudden  perfection  in  the  course  of  a  few  years." 
But  Lord  Coke  and  Sir  Matthew  Hale  refer  to  the  reign  of 
Edward  III.  as  the  period  when  pleading  had  attained  its 
highest  point  of  excellence. 

Ill  Illinois. — The  common  law  system  of  pleading  prevails 
in  Illinois.  It  has  from  time  to  time,  been  so  modified  by 
statute,  as  to  remove  arbitrary  and  artificial  distinctions,  and 
by  the  allowance  of  amendments  at  any  and  every  stage  of 
the  proceedings  and  to  every  reasonable  extent,  its  purely 
technical  and  objectionable  features  have  been  largely  done 
away  Avith.  With  the  general  logical  arrangement  of  the 
system,  as  at  common  law,  there  has  been  no  interference  by 


GENEEAL    PEINCIPLES    OF    PLEADINGS.  6 

statute.  The  order  of  pleading,  and  the  structure  and  office 
of  pleas  of  different  character,  remain  substantially  un- 
changed. 

Kinds  of  actions.-— Actions  are  either  real,  2^^^^onal  or 
mixed.  Heal  actions  are  those  where  a  party  claims  title  to 
have  any  lands,  tenements,  rents,  commons  or  other  heredita- 
ments, in  fee  simple,  fee  tail  or  for  term  of  life;  by  which  ac- 
tions formerh",  all  disputes  concerning  real  estate  were  deter- 
mined. 

Personal  actions  are  those  where  a  man  claims  a  debt  or 
personal  property  or  damages  in  lieu  thereof;  where  he  seeks 
a  recover}''  of  a  specific  personal  chattel  or  a  satisfaction  in 
damages  for  a  breach  of  a  contract,  or  for  some  injury  to  per- 
son or  property.  Personal  actions  are  divided  into  actions  ex 
contractu  and  actions  ex  delicto.  Actions  ex  contractu  are  prin- 
cipally assunijiMit,  debt,  covenant,  account  and  detinue,  and  those 
ex  delicto  are  case,  trover,  replevin  and  trespass. 

Mixed  actions  are  those  partaking  of  the  nature  of  real  and 
personal  actions  and  are  generally  brought  for  the  recovery  of 
real  property,  and  also,  for  damages  for  detention  or  injury 
thereof,  as  for  instance  the  action  of  ejectment,  or  waste,  or 
quare  impedit.  Under  these  three  heads  ma}^  every  species  of 
remedy  by  suit  in  the  courts  of  common  law  be  comprised. 

Forms  of  actions. — The  forms  of  actions  commonly  resorted 
to  for  the  redress  of  civil  injuries  are  Assumpsit,  Account,  Debt, 
Covenant,  Detinue,  Case,  Replevin,  Trespass,  Trover  and  Eject- 
ment. These  remedies  are  drawn  from  the  common  law  of 
England,  as  being  the  best  known  methods  of  appealing  to  the 
public  authority  for  the  redress  of  private  wrongs.  By  stat- 
utory enactment,  many  of  the  states  have  adopted  the  common, 
law  of  England,  and  all  statutes  of  the  British  Parliament  of 
a  general  nature  in  aid  thereof,  prior  to  the  fourth  year  of 
King  James  I.  Many  of  these  forms  of  action  have  been  mod- 
ified by  subsequent  legislation,  and  some  peculiar  statutory 
remedies  have  been  introduced;  but  in  general  the  great  lead- 
ing features  of  the  common  law,  in  relation  to  the  mode  of  ob- 
taining redress  of  private  injuries  by  action  at  law,  still  pre- 
vail in  most  of  the  United  States.     In  Illinois  the  distinction 


4  GENERAL    PKINCIPLES   OF   PLEADINGS. 

between  the  actions  of  trespass  and  trespass  on  the  case  has 
been  abolished  by  a  recent  statute.' 

Order  of  pleadiners. — The  pleadings  in  a  cause  are  com- 
menced, on  the  part  of  the  plaintiff,  with  the  declaration,  which 
is  a  statement  in  writing  of  his  cause  of  action  in  legal  form. 
This  declaration,  as  every  other  pleading  in  the  cause,  is  re- 
quired to  be  framed  agreeably  to  the  established  rules  and 
forms  of  pleading,  and  if  defective  in  any  particular,  either  in 
substance  or  form,  may  be  objected  to  as  insufficient  in  law,  by 
demurrer,  on  the  part  of  the  defendant;  or  he  may  allege  some 
matter  in  abatement  of  the  action,  or  may  deny  the  declaration 
to  be  true  in  point  of  fact,  or  may  set  up  matter  in  avoidance 
of  it — such  answer  on  the  part  of  the  defendant  being  technic- 
ally denominated  his  ^Ze^.  To  the  defense  thus  made,  the 
plaintiff  may  again,  in  his  turn,  reply,  either  in  case  of  de- 
murrer, by  re-asserting  his  declaration  to  be  sufficient  in  law 
to  support  his  action,  and  referring  that  question  to  the  judg- 
ment of  the  court,  which  is  termed  a.  joinder  in  demurrer;  or, 
in  case  of  a  special  plea,  he  may  on  his  part  demur  to  such 
plea,  as  insufficient  in  law  to  constitute  a  defense;  or  he  may 
deny  it  to  be  true  in  point  of  fact  or  allege  some  new  matter  in 
avoidance  of  it,  according  to  the  circumstances — such  answer 
being  styled  a  replication.  To  the  replication  the  defendant 
may  either  demur  upon  the  law,  or  oppose  a  rejoinder  as  to  the 
fact;  and  to  the  rejoinder  the  plaintiff  may  demur,  or  oppose  a 
surrejoinder;  and  so  the  parties  may  proceed,  by  a  system  of 
alternate  allegation  and  objection^  denial  or  evasion,  technically 
termed  the  pleadings,  until  they  arrive  at  an  issue,  that  is,  some 
specific  point  of  law  or  fact,  affirmed  on  one  side  and  denied  on 
the  other,  and  presenting  the  exact  question  for  the  court  or 
jury  to  determine.  The  manner  of  forming  these  issues,  and 
the  precedents  to  be  used  in  each  step  of  the  pleadings  in  each 
form  of  action,  will  be  considered  and  pointed  out  in  the  sub- 
sequent chapters. 

1 2  Starr  &  Curtis,  1787;  Rev.  Stat.      v.  Ward,  77111.  603;  BlalockY,  Ran- 
(1893),  1074;  Eev.  Stat,   (1895),  1158;      dall,  76  III.  234. 
Barker  v.  Koozier,  80  111.  205;  Krug 


CHAPTER  11. 

COMMENCEMENT  OF  AN  ACTION. 

The  Praecipe. 
Bail  in  Civil  Cases. 
Affidavit  of  Plaintiff's  Claim. 
Security  for  Costs. 
Parties  to  an  Action. 
Process  for  Appearance. 
Declaration. 
Copy  of  Account. 

The  praecipe. — In  general,  the  issuing  of  the  writ  is  the 
commencement  of  the  suit^;  but  it  is  usual  for  the  attorney 
of  the  plaintiff  to  file  with  the  clerk  of  the  court  3l  2)raecijL)€,  or 
order  directing  such  process  to  be  issued  against  the  defend- 
ant, as  the  nature  of  the  case  may  require.  The  praecipe  should 
specify  the  court,  the  names  of  the  parties,  the  kind  of  action, 
the  kind  of  ivrit,  and  when  it  is  to  be  made  returnable;  and 
the  amount  of  the  debt  and  damages,  in  case  of  debt,  and  of 
damages  in  other  actions. 

The  damages  claimed  in  ih.e  praecipe '&\ioVi\^  be  large  enough 
to  cover  the  amount  due;  for  if  the  judgment  obtained  is 
greater  than  the  damages  claimed,  it  will  be  error; '  but  to 
be  taken  advantage  of  upon  appeal  the  objection  must  be  made 
in  trial  court.^  Where,  however,  the  verdict  or  finding  is 
for  more  than  the  amount  claimed,  the  excess  may  be  remitted 
before  or  at  the  time  of  entering  judgment.  But  where  the 
ad  damnum,  by  mistake,  is  made  too  small,  as  appears  by 
computation  of  the  sum  laid  in  the  declaration,  the  same  may 
be  amended,  even  after  verdict. 

^Feazle  v.   Simpson,  1   Scam.  30;  '  Utter  v.  Jaffray,  114111.  470;  A. 

Ins.  Co.  V.  Schroeder,  9  Bradw.  472;  O.  U.  W.  v.  Jesse,  50  111.  App.   101, • 

Utter  V .  Jaffray,  15  Bradw.  236.  Cunningham  v.  Alexander,  58    III. 

^Linden  v.  Monroe.    33  111.    888;  Ap]).29Q:  Accident  Ass'n  v.  FroHand, 

Altes  V.  Hinckler,  36  111.  275;  Pier-  59  111.  App.  522. 
son  V.  Finney,  37  111.  29. 

(5) 


6  COMMENCEMENT    OF    AN    ACTION. 

Where  suit  is  brought  by  or  against  administrators,  execu- 
tors, guardians,  and  the  like,  they  shoukl  be  so  described  in 
the  j:>meeijje  and  care  sliould  be  taken  to  give  proper  descrip- 
tion to  the  parties  to  the  suit,  and  other  particuhirs,  as  a  va- 
riance between  the  writ  and  declaration  as  to  the  parties,  cause 
of  action,  or  amount  of  damages  alleged,  will  be  ground  for  a 
plea  in  abatement,  or,  in  some  cases,  for  motion  to  quash.' 

But  where  a  suit  is  instituted  in  the  individual  names  of 
school  directors,  in  reference  to  a  matter  in  which  they  are 
only  interested  in.  their  corporate  capacit3^  the  court  will 
allow  the  title  of  the  cause  to  be  amended  by  striking  out  the 
individual  names  of  the  directors,  and  substituting  their  cor- 
porate name.''  Corporations  should  be  described  in  all  legal 
proceedings  by  their  corporate  names.' 

If  a  promise  is  made  to  or  by  a  corporation  or  person  by  a 
wrong  name,  the  action  should  be  brought  in  the  right  name, 
setting  forth  the  facts  in  the  declaration;  but  otherwise  where 
a  specialty  is  entered  into  by  a  wrong  name.^  The  cautious 
pleader  will  generally  file  a  praecipe,  as  a  guide  to  the  clerk  in 
preparing  the  summons;  and  then  if  the  writ  should  happen 
to  be  erroneous,  the  fault  may  be  amended  by  the  praecipe; " 
although  it  is  not  essential  to  the  proper  and  legal  issuing  of 
the  summons  that  a  praecipe  should  be  filed  at  all. 

Praecipe  for  Summons  or  Capias. 

In  the Court  of  the  County  of ,  in  the  State  of  Illinois. 

A.  B.  ) 
vs.     > .     Damages  $ , 

C.  D.  ) 

The  clerk  of  the  said  court  will  issue  a  summons  (or  "  capias  ad  respon- 
dendum "),  as  above,  directed  to  the  sheriff  of  the  county  of  ,  and  re- 
turnable to  the term,  18 — . 


{Date.) 

To  J.  K,  Clerk,  etc. 


E.  F.,  Attorney  for  Plaintiflf. 


^  Rust    V.    Frothingham,    Breese  20111.46;  Reaugh  v.  McConnell,  36 

331;    Prince  v.    Lamb,  Breese  378;  111.  373;    Windett  v.  Hamilton,  53 

Cruickshank  v.  Brown,  5  Gilm.  75;  111.  180. 

Weldv.  Hubbard,  11  111.  574;  Row-  ^Shoudyv.  Directors,  32  111.  290. 

ley  V.  Berrian,  12  111.  199;  Carjien-  ^  III.  Hosp.  v.  Higgins,  15  111.  185. 

ter  V.  Hoijt,  17  111.  530;  Plato  v.  Ter-  *  1  Chitty's  PI.  223;  Gould's  PI.  241. 

ri7/,  18111.  274;  Schoonhoveny.  Gott,  ^Thompson  v.  Turner,  22  ill.  389. 


COMMENCEMENT    OF    AN    ACTION.  7 

Bail  in  civil  cases — Capias  ad  respoiidendum. — The  first 
section  of  tlie  Illinois  statute  concerning  bail  in  civil  cases,  in 
force  from  and  after  July  1,  1872,  provides,  that  when  any 
person  shall  be  about  to  commence  a  suit  in  any  court  of 
record  in  the  state,  founded  upon  any  specialty,  bill  or  note  in 
writing,  or  on  the  judgment  of  any  court,  and  in  all  actions  of 
covenant  and  account,  and  actions  on  verbal  contracts  or  as- 
sumpsits at  law,  if  the  plaintiff,  or  his  agent  or  attorney,  shall 
make  an  affidavit  setting  forth  the  cause  of  action,  and  the 
amount  due  the  plaintiff,  and  facts  showing  that  the  defend- 
ant fraudulently  contracted  the  debt,  or  incurred  the  obliga- 
tion, respecting  which  the  suit  is  about  to  be  brought,  or  that 
he  has  concealed,  assigned,  removed,  or  disposed  of  his  prop- 
erty with  intent  to  defraud  such  plaintiff,  and  shall  present 
such  affidavit  to  a  judge  of  a  court  of  record,  or  if  there  be  no 
such  judge  in  the  county  at  the  time,  then  to  a  master  in  chan- 
cery, and  if  such  judge  or  master  shall  be  satisfied  that  suffi- 
cient cause  is  shown  to  require  bail,  he  shall  indorse  an  order 
under  his  hand,  on  such  affidavit,  directing  the  clerk  of  the 
court  in  which  suit  is  about  to  be  brought  to  issue  a  capias  ad 
respondendum,  directed  to  the  proper  officer  to  execute,  for  the 
arrest  of  the  defendant  or  defendants  in  such  proposed  action; 
and  the  judge  or  master  shall,  in  such  order,  fix  the  amount 
of  the  bail;  and  upon  the  filing  of  such  affidavit  and  order,  it 
shall  be  the  duty  of  the  clerk  to  issue  a  capias,  and  indorse 
thereon  an  order  directing  the  sheriff,  or  officer  to  whom  such 
process  is  directed,  to  hold  the  defendant  to  bail  in  the  sum 
specified  in  such  order,  and  the  sheriff,  or  officer  serving  such 
process,  shall  take  bail  accordingly.' 

Actions  sonnding  merely  in  damages, — The  second  section 
provides,  that  in  actions  sounding  merely  in  damages,  where 
the  same  can  not  be  ascertained,  the  affidavit  shall  also  set 
forth  the  nature  and  cause  of  the  action,  with  the  substantial 
or  chief  facts  in  relation  thereto,  and  that  the  affiant  verily 
believes  that  the  benefit  of  whatever  judgment  raav  be 
obtained  will  be  in  danger  of  being  lost  unless  the  defendant 
is  held  to  bail;  and  if  upon  examination  thereof,  the  judge  or 

'1  Starr  &  Curtis"  An.  Stat.  358;  Rev.  Stat.  (1893)  190;  Rev.  Stat.  (1895;  192. 


0  COMMENCEMENT   OF   AN   ACTION. 

master  shall  be  satisfied  that  sufRcient  cause  is  shown  to 
require  bail,  he  shall  make  an  order  thereon,  specifying  in 
what  amount  the  defendant  shall  be  required  to  give  bail,  and 
like  proceedings  shall  be  had  thereon  as  provided  in  section 
one  of  the  same  act,  and  the  officer  serving  the  process  shall  in 
like  manner  take  bail. 

Plaintiff  to  give  bond. — The  third  section  requires  that  the 
judge  or  officer  ordering  the  issuing  of  such  capias  shall  require 
bond  of  the  plaintiff  in  a  penal  sum  of  double  the  amount  sued 
for,  with  security  to  be  approved  by  the  clerk  issuing  the  Avrit, 
conditioned  that  the  plaintiff  shall  prosecute  the  cajpias  with 
effect  and  without  delay,  and  pay  the  defendant  all  costs  and 
damages  that  may  be  sustained  by  the  wrongful  suing  out  of 
such  capias.  And  no  capias  shall  issue  until  such  bond  is  ap- 
proved and  filed  by  such  clerk. 

Bail  bond. — The  fourth  section  provides,  that  where  any 
writ  shall  have  been  issued  from  any  court  of  record  in  the 
state,  whereon  bail  is  required,  the  sheriff  or  other  officer  to 
whom  the  same  may  be  directed,  shall  take  a  bail  bond  to  him- 
self, with  sufficient  security,  in  the  sum  for  which  bail  is 
required.  The  form  of  the  condition  of  such  bond  is  given  in 
the  same  section,  and  is  substantially  the  same  as  the  condi- 
tion of  the  "  bail  bond  in  civil  actions  "  hereafter  given.  The 
bond  so  taken  is  to  be  returned  with  the  writ,  on  or  before 
the  first  day  of  the  term  of  the  court  to  which  the  writ  is 
returnable.  The  officer  making  the  arrest  is  required  to  give 
the  person  arrested  reasonable  time  and  opportunity  to  pro- 
cure bail  before  committing  him  to  jail. 

No.  1.    Affidavit  for  capias  ad  respondendum,  charging  fraud,  in  action 

ex  contractu. 


'"\ 


State  of  Illinois, 

County  of f    set.      A.  B.,  of  ,  who  is  about  to  commence  his 

action  of  (assumpsit,  or  as  the  case  may  be),  in  the Court  of  the  said 

county,  against  C.  D.  of  ,  makes  oath  and  says,  that  the  said  C.  D.  is 

justly  indebted  to  this  affiant  in  the  sum  of dollars,  for  {here  set  forth 

tlie  cause  of  action  particularly)  *.  And  this  affiant  further  says,  that  the 
said  C.  D.  (here  set  forth  facts  shoiving  that  the  defendant  fraudulently 
contracted  the  debt,  or  incurred  the  obligation,  respecting  tchich  the  suit  is 
about  to  bzbrought).     And  this  affiant  further  says,  that  he  verily  believ^-s 


COMMENCEMENT    OF   AN    ACTION.  9 

the  benefit  of  whatever  judgment  he  may  obtain  in  this  belialf  will  be  in 
danger  of  being  lost,  unless  the  said  C.  D.  be  held  to  bail. 

A.  B. 
Subscribed  and  sworn,  etc. 

No.  2.  Affidavit  for  capias,  charging  the  defendant  with  concealing, 
assigniyig,  removing,  or  disposing  of  his  property,  with  intent  to  defraud 
the  plaintiff. 

{Commence  as  in  No.  1,  inserting  these  words  at  the  *  :)  And  this  affiant 
further  says  that  the  said  C.  D.  (here  set  forth  facts  shou-ing  that  the  de- 
fendant has  concealed,  assigned,  removed  or  disposed  of  his  property,  as  the 
case  may  he,)  with  the  intent  to  defraud  this  affiant.  And  this  affiant  fur- 
ther says,  that  he  verily  believes  the  benefit  of  whatever  judgment  he  may 
obtain  in  this  behalf  will  be  in  danger  of  being  lost,  unless  the  said  C.  D. 
be  held  to  bail.  A.  B. 

Subscribed,  etc. 

No.  3.    Affidavit  for  capias,  in  action  sounding  merely  in  damages,  etc. 

State  of  Illinois,  ) 

County  of  ,     [set.     A.  B.,  of ,  who  is  about  to  commence 

his  action  of  (trespass,  or  as   the  case  may  be,)  in  the  Court  of  tlie 

said  county,  against  C.  D. ,  of  ,  makes  oath  and  says,  that  (here  set 

forth  the  nature  and  cause  of  the  action,  ivith  the  substantial  facts  in  rela- 
tion thereto).  And  this  affiant  further  says,  that  the  amount  of  his  dam- 
ages can  not  be  definitely  stated,  but  he  believes  he  has  sustained  damages 
in  this  behalf  to  the  amount  of dollars.  And  this  affiant  verily  be- 
lieves that  the  benefit  of  whatever  judgment  he  may  obtain  in  his  said  suit 
will  be  in  danger  of  being  lost,  unless  the  said  C.  D  be  held  to  bail. 

A.  B. 

Subscribed,  etc. 

In  setting  forth  the  facts  in  the  aiRdavit,  it  is  advisable  to 
state  them  substantially  as  they  are  required  to  be  set  forth  in 
a  declaration.  The  above  forms,  Nos,  1  and  2,  may  be  varied 
to  suit  any  action  arising  ex  contractu,  and  form  Xo.  3  can  be 
adapted  to  all  actions  ex  delicto.  Before  the  passage  of  the 
act  in  force  July  1,  1S72,  the  statute  of  Illinois  did  not  go  far 
enough  to  meet  the  requirements  of  the  constitution.' 

It  will  be  seen  that  the  affidavit  for  a  capias  must  be  pre- 
sented to  a  judge  of  a  court  of  record,  or  if  there  is  no  such 
judge  in  the  county  at  the  time,  then  to  a  master  in  chancery; 
and  if  such  judge  or  master  shall  be  satisfied  that  sufficient 

1  In  re  Smith,  16  111.  347;  Gorton  v.  Frizzell,  20  lU.  291;  Parker  v.  Fol- 
lansbee,  45  111.  473. 


10  COMMENCEMENT    OF    AN    ACTION. 

cause  is  shown  to  require  bail,  be  sball  indorse  an  order,  under 
his  hand,  on  the  affidavit,  directing  the  clerk  of  the  court  in 
which  suit  is  about  to  be  brought  to  issue  a  capias  ad  respon- 
dendum, directed  to  the  proper  officer  to  execute,  for  the  ar- 
rest of  the  defendant  in  such  proposed  action;  and  the  judge 
or  master  shall  in  such  order  iix  the  amount  of  the  bail. 
The  judge  or  master  ordering  the  issuing  of  such  capias  Avill 
require  bond  of  the  plaintiff  in  a  penal  sum  of  double  the 
amount  sued  for,  with  security  to  be  approved  by  the  clerk 
issuing  the  writ. 

Judge's  order  for  a  capias  ad  respondendum,  to  hz  indorsed  on   the  affi- 
davit. 

Let  a  capias  ad  respondendum  issue,  directed  to  the  sheriff  of  the  county 

of ,  for  the   arrest  of  C.  D.,  within  named,  of  whom   the  sheriff  will 

take  bail  in  the  sum  of dollars.     The  within  named  A.  B.  will   give 

bond  in  the  sum  of (double  tlie  amount  sued  for)  dollars,  conditioned 

according  to  law. 

(Date.) 

E.  F.,  Judge. 

To  G.  H.,  Clerk  of  the  Court  of  the  county  of  . 

The  order  to  be  made  by  a  master  in  chancery  may  be  the 
same  as  the  above,  except  that  it  should  commence  as  follows : 

It  appearing  to  the  undersigned   that  there  is   no  judge  of  a  court  of 
record  in  the  covmty:  Let,  etc.,  etc. 

O.  R.,  Master  in  Chancery. 

Bond  to  be  given  by  the  plaintiff  before  the  issuing  of  the  writ. 

Know  all  men  by  these  presents,  that  we,  A.  B.,  E.  F.  and  L.  M.,  of , 

are  lield  and  firmly  bound  unto  C.  D.,  of ,  in  the  penal  sum  of dol- 
lars, for  the  payment  of  which,  well  and  truly  to  be  made,  we  bind  our- 
selves, ovir  heirs,  executors  and  administrators,  jointly  and  severally,  by 
these  presents,  sealed  with  our  seals,  and  dated  this day  of ,  18 — . 

The  condition  of  this  obligation  is  such,  that  whereas  the  above-bounden 

A.  B .  is  about  to  sue  out  of  the Court  of  the  county  of ,  in  the 

State  of  Illinois,  a  writ  of  capias  ad  respondendum,  in  a  plea  of , 

against  the  said  C.  D.,  returnable  to  the  next  term  of  the  said  court,  to  be 

held   at  ,  on  the  day  of  next:    Now  if  the  said  A.  B.  shall 

prosecute  the  said  capias  with  effect,  and  without  delay,  and  pay  to  the  said 
C.  D.  all  costs  and  damages  that  may  be  sustained  by  the  wrongful  suing 


COMMENCEMENT    OF   AN   ACTION.  11 

out  of  such  ca^jms,  then  this  obligation  shall  be  void ;  otherwise  shall  remain 
in  full  force. 

A.  B.  [L.  s.] 
E.  F.  [L.  s.] 
L.  M.     [L.  s.] 

Taken  and  approved  by  me,  this day  of ,  18—. 

R.  S.,  Clerk. 

Bo7id  to  be  taken  by  the  sheriff  from  the  defendant. 

Know  all  men  by  these  presents,  that  we,  C.  D.  and  E.  F.,  of  ,  are 

held  and  firmly  bound  unto  T.  W.,  sheriff  of  the  county  of  ,  in  the 

State  of  Illinois,  in  the  penal  sum  of  {double  the  amount  for  which  bail  is 
required)  dollars,  for  the  payment  of  which,  well  and  truly  to  be  made,  we 
bind  ourselves,  our  heirs,  executors  and  administrators,  jointly  and  sever- 
ally, by  these  presents,  sealed  with  our  seals,  and  dated  this  day  of 

,  18-. 

The  condition  of  this  obligation  is  such,  that  whereas  one  A.  B.,  plaintiff, 

has  lately  sued  out  of  the  Court  of  the  county  of  a  certain 

writ  of  capias  ad  respondendum,  in  a  certain  plea  of  ,  against  the 

above-bounden  C.  D.,  defendant,  returnable  to  the  next  term  of  the  said 

court,  to  be  holden  at  ,  on  the  day  of  next:    Now  if  the 

said  C.  D.  shall  be  and  appear  at  the  said  court,  to  be  holden  at ,  on 

the  day  of  next,  and  in  case  the  said  E.  F.  shall  not  be  re- 
ceived as  bail  in  the  said  action,  shall  put  in  good  and  sufficient  bail,  which 
shall  be  received  by  the  said  plaintiff,  or  shall  be  adjudged  sufficient  by  the 
court,  or,  the  said  E.  F.  being  accepted  as  bail,  shall  pay  and  satisfy  the 
costs  and  condemnation-money  which  may  be  rendered  against  the  said 
C.  D.  in  the  plea  aforesaid,  or  surrender  the  body  of  the  said  C.  D.  in  execu- 
tion in  case  the  said  C.  D.  shall  not  pay  and  satisfy  the  said  costs  and  con- 
demnation-money, or  surrender  himself  in  execution  when  by  law  such 
surrender  is  required,  then  tliis  obligation  shall  be  void;  otherwise  shall  re- 
main in  full  force.  C.  D.  [l.  s.] 

E.  F.  [L.  s.] 

Affidavit  of  plaintiff's  claim  on  contracts  for  payment  of 
money. — Section  36  of  the  Practice  Act  provides,  that  "  If  the 
plaintiff  in  any  suit  upon  a  contract,  expressed  or  implied,  for 
the  payment  of  money,  shall  file  with  his  declaration  an 
affidavit  showing  the  nature  of  his  demand,  and  the  amount 
due  him  from  the  defendant,  after  allowing  to  the  defendant 
all  his  just  credits,  deductions  and  set-offs,  if  any,  he  shall  be 
entitled  to  judgment  as  in  case  of  default  unless  the  defendant 
or  his  agent  or  attorney,  if  the  defendant  is  a  resident  of  the 
county  in  which  the  suit  is  brought,  shall  file  with  his  plea  an 


12  COMMENCEMENT    OF   AN   ACTION. 

aiRdavit  stating  that  he  veril}^  believes  that  he  has  a  good 
defense  to  said  suit,  upon  the  merits,  to  the  whole  or  a  portion 
of  the  plaintiff's  demand,  and  if  a  portion,  specifying  the 
amount  (according  to  the  best  of  his  judgment  and  belief), 
upon  good  cause  shown,  the  time  for  filing  such  affidavit 
may  be  extended  for  such  reasonable  time  as  the  court  shall 
order;  no  affidavit  of  merits  need  be  filed  with  a  demurrer 
or  motion:  Provided,  that  this  section  shall  not  apply  to  any 
case  where  an  executor  or  administrator  shall  defend  in  behalf 
of  an  estate:  And  provided  further,  that  if  the  plaintiff,  his 
agent,  or  attorney,  shall  file  an  affidavit  stating  that  affiant  is 
taken  by  surprise  by  such  plea  and  affidavit  of  merit,  and  that 
he  believes  that  plaintiff  has  testimony  to  support  his  claim 
against  the  defendant,  which  he  can  not  produce  at  that  term 
of  court,  but  expects  to  produce  by  next  term,  the  court  shall 
continue  such  cause  until  the  next  term." '  The  affidavit  of 
the  plaintiff's  claim  may  be  made  by  any  one  cognizant  of  the 
facts.' 

An  affidavit  of  plaintiff's  claim  on  an  account  is  to  be  taken 
asprifiia  facie  evidence  of  the  amount  due,  unless  the  defend- 
ant files  an  affidavit  of  merits  with  his  pleas."  An  affidavit  of 
claim  or  merits  may  be  filed  with  a  distress  warrant,'  or  a 
declaration  on  an  appeal  bond.* 

Form  of  affidavit  to  he  filed  ivith  declaration, 

(Venue  and  title  of  cause  as  on  page  6,  ante.) 

A.  B.,  of  etc.,  makes  oath  and  says  that  he  is,  etc.  (Here  state  u-hetJier 
he  is  plaintiff,  agent,  etc);  that  the  demand  of  the  plaintiff  in  the  above 
entitled  cause,  is  for,  etc.  (state  the  nature  of  the  demand);  and  that  there 
is  due  to  the  plaintiff  from  the  defendant,  after  allowing  to  him  all  just 

credits,  deductions  and  set-offs,  the  sum  of dollai-s. 

A.  B. 

Subscribed  and  sworn  to,  etc. 

'  Rev.  Stat.  (1893),  1076;  2  Starr  &  »  2  Starr  &  Curtis  1804;  Rev.  Stat. 

Cm-tisl801;  Rev.  Stat.  (1895).  1160,  (1893),  1076;    Rev.   Stat.  (1895),   1160; 

2  Wilder  v.  Aru-edsoJi,  80  111.  435;  Coal  Co.  v.  Field,  17  Bradw.  260. 

Brigham  v.  Atha,  84  111.  43;   Young  *  Bartlett  v.  Sullivan,  87  111.  219. 

V.  Browning,  71  111.  44;  Haggard  v.  *  Coursen  v.  Browning,  86  111.  57; 

Smith,lllll.  22Q;  Oai-rityv.  Lozano,  Mestling    v.    Hughes,    89    111.    889; 

83  111.  597;  C.  D.  &  V.  R.  R.  v.  Bank,  Myers  v.  Slioneman,  90  111,  80. 
89  111.  493;  Haggard  v.  Smith,  76  111. 
507. 


COMMENCEMENT    OF    AN   ACTION.  13 

The  court,  in  its  discretion,  may  allow  an  affidavit  of  plaintiff's 
claim  to  be. filed  after  plea  is  filed,  and  may  then  strike  plea 
from  files,  unless  affidavit  of  merits  is  filed.'  An  affidavit  of 
claim ^  or  affidavit  of  merits^  may  be  amended. 

The  only  effect  of  omission  on  the  part  of  the  plaintiff  to 
file  affidavit  with  declaration,  is  that  the  defendant  may  plead 
without  verifying  his  plea." 

(See  Affidavit  of  Merits,  page  149,  post.) 

SECURITY    FOR    COSTS. 

When  required. — The  statute  provides,  "  that  in  all  actions 
in  any  court  of  record  on  official  bonds  for  the  use  of  any  per- 
son, actions  on  the  bonds  of  executors,  administrators  or  guard- 
ians, qui  tarn  actions,  actions  on  a  penal  statute  and  in  all 
cases  in  law  or  equity,  where  the  plaintiff,  or  person  for  whose 
use  an  action  is  to  be  commenced,  shall  not  be  a  resident  of 
this  state,  the  plaintiff  or  person  for  whose  use  the  action  is  to 
be  commenced,  shall,  before  he  institutes  such  suit,  file  or 
cause  to  be  filed,  with  the  clerk  of  the  court  in  which  the 
action  is  to  be  commenced,  security  for  costs."  ^ 

The  statute  applies  to  a  writ  of  error  sued  out  of  the  supreme 
or  appellate  courts; '  it  applies  to  attachment,  as  an  attach- 
ment bond  does  not  satisfy  this  statute; '  and  to  non-resident 
landlords  issuing  distress  warrants  for  rent;  *  but  if  an  action 
is  brought  by  a  non-resident  for  the  use  of  a  resident;  ^  or 
by  two  plaintiffs,  one  of  whom  is  a  resident  and  solvent; '"  or 
in  a  bastardy  proceeding,  no  security  for  costs  is  required."  In 
an  action  brought  in  the  name  of  the  people  for  the  use  of  a 

'  SpradZmgr  V.  i2HS.seZZ,  100  111.  522;  v.   Haines,   5  Gilm.    2\;  Adams  x. 

Bailey  V.  Valley  Bank,  127  111.  332;  Miller,  14  111.  71;   Wood  v.  Goss.  24 

Trusedell    v.   Hunter,   28  111.  App.  111.627;  Whitehurstv.  Coleen,5Zl\\. 

293.  247;  Kolhe  v.  People,  85  111.  336. 

«  Peirson  v.  Hendrix,  88  III.  34.  '^  Roberts  v.  Eahs,  32  111.  474;  Rlp- 

3  Culver  V.  Johnson,  90  111.  91.  ley  v.  Morris,  2  Gilm.  381;  Hickman 

4  Kern  v.  Strassberger,  71  111.  303.  v.  Haines,  5  Gilm.  20. 

5 1  Starr  &  Curtis,  635;  Rev.  Stat.  ''  Casey  v.  Horton,  36  111.  234. 

(1893)  394;    Rev.    Stat.    (1895)    432;  ^  Lapointe  x.  Steivart,  16  III  291. 

Randolph  v.    Emerick,    13   111.345;  ^  Caton  v.  Harmon,  I  Scam.  581. 

Smith  V.  Robinson,  11  111.  119;  Caton  ">  Wood  v.  Goss,  24  111.  627. 

V.  Harmon,  1  Scam.  581;  Hickman  ''  Kolbe  v.  People,  85  111.  336. 


14  COMMENCEMENT    OF    AN    ACTION. 

county  to  recover  a  penalty  for  obstructing  a  public  highway 
no  bond  for  costs  is  necessary.' 

Suits  by  minors  by  next  friend. — In  section  18  of  chapter 
61,  entitled  "  Guardian  and  Ward," "  it  is  provided  that  suits 
may  be  commenced  by  any  minor  by  his  next  friend,  on  such 
next  friend  entering  into  bond  for  costs,  and  filing  the  same  in 
the  court  where  such  action  may  be  instituted.  An  action 
brought  by  the  next  friend  of  an  infant  without  an  order  of 
appointment  or  the  filing  of  a  bond  for  costs,  will  not  be  dis- 
missed if  such  bond  be  given  when  so  ordered  by  tlie  court. 
The  giving  of  the  bond  for  costs  is  not  a  jurisdictional  matter.' 

Form  of  security  for  costs. — The  statute  requires  that  the 
security  to  be  given  before  the  commencement  of  the  suit, 
shall  be  substantially  in  the  following  form : 

A.  B. ) 

vs.     [   {Title  of  Court.) 
CD.) 

I  (E.  F.)  do  enter  myself  security  for  all  costs  which  may  accrue  iu  the 
above  cause. 

Dated  this day  of ,  A.  D.  18—. 

(Signed)        E.  F.^ 

Surety — Approval  and  eifect  of  bond. — Such  instrument  is 
required  to  be  signed  by  some  responsible  person,  a  resident 
of  this  state,  to  be  approved  by  the  clerk,  and  binds  such  per- 
son to  pay  all  costs  which  may  accrue  in  such  action,  either 
to  the  opposite  party,  or  to  any  of  the  officers  of  the  court  in 
which  the  action  is  commenced,  or  to  which  it  may  be  removed 
by  change  of  venue  or  appeal.^  A  bond  for  costs  covers  all 
costs  without  reference  to  the  person  to  whom  they  may  ac- 
crue.^ It  was  held  under  a  former  statute,  that  the  security 
is  not  bound  for  costs  made  against  his  principal  in  the 
supreme  court  on  appeal.' 

Dismissal  for  want  of  security  for  costs. — If  a  suit  is  com- 

'  People  V.  CouUas,  9  Bradvv.  39.  *1  Starr  &  Curtis,  635;  Rev.  Stat. 

5 1  Starr  &  Curtis,  1241;  Rev.  Stat.      (1893).  394;  Rev.  Stat.  (189o)  433. 
(1893)  793;  Rev.  Stat.  (1895)  841.  «  i  Starr  &  Curtis,  636;  Rev.  Stat. 

^Railroad  Co.  v.  Latimer,  138  111.      (1893).  394;  Rev.  Stat.  (1895),  433. 
163.  ^  Whitehurst  v.  Cohen,  53  111.  347. 

'  Clark  v.  Quackenboss,  28  111.  113. 


COMMENCEMENT    OF   AN    ACTION.  15 

menced  without  filing  such  security,  the  court  on  motion  will 
dismiss  the  suit  at  the  cost  of  the  attorneys,  unless  such  secu- 
rity shall  be  filed  within  such  time  as  shall  be  allowed  by  the 
court,  and  when  so  filed,  it  will  relate  back  to  the  commence- 
ment of  the  suit;  and  the  right  to  require  security  for  costs 
will  not  be  waived  by  any  pleading  or  other  proceeding  in  the 
case; '  but  a  lack  of  a  bond  for  costs  can  not  be  objected  to  for 
the  first  time  in  the  supreme  or  appellate  court." 

Motion  to  dismiss  for  want  of  security  for  costs. — To 
support  a  motion  to  dismiss  a  suit  for  want  of  security  for  costs, 
on  the  ground  that  the  plaintiff  was  a  non-resident,  the  de- 
fendant must  file  an  affidavit,  sufiicient  to  negative  the  fact 
that  the  plaintiff,  or  person  for  whose  use  the  suit  is  brought, 
was  a  resident  at  the  time  of  the  commencement  of  tlie  suit.* 

Rule  to  file  security. — Upon  a  motion  to  dismiss  a  suit  for 
want  of  security  for  costs,  if  the  plaintiff  is  shown  to  have 
been  a  non-resident  at  the  time  of  the  commencement  of  the 
suit,  the  court  will  enter  a  rule  on  the  plaintiff  to  file  security 
within  such  time  as  may  be  fixed  by  the  court.  The  suit 
should  not  be  dismissed  without  giving  such  time.* 

Where  the  motion  is  based  on  the  ground  that  the  action  is 
upon  a  penal  statute,  and  that  no  securit}^  Avas  given,  the  court 
may  permit  the  plaintiff  to  file  a  bond  for  costs,  after  a  motion 
to  dismiss  for  want  of  such  security.* 

Cross-motion. — On  a  motion  to  dismiss  for  want  of  securit}'- 
for  costs,  the  better  practice  is  for  the  plaintiff  to  file  a  cross- 
motion  for  leave  to  supply  such  security  and  it  will  be  granted. 

Objections  to  security. — "Where  the  security  to  a  bond  for 
costs  is  objected  to,  it  is  incumbent  on  the  party  presenting  it 
to  satisfy  the  court,  by  competent  proof,  that  it  is  sufficient.' 

After  action  brought. — In  regard  to  security  for  costs  after 
action  brought,  the  statute  provides  that,  "  if  at  any  time  after 

n  Starr  &  Curtis,  637;  Eev.  Stat.  O'Connell  v.  Rea,  51  111.  306;  John- 

(1893),    394;    Rev.  Stat.    (1895),  432;  son  v.  Huber,  IS-ilU.  'Alt. 

Kimbark  v.  Blundin,  6  Brad.  539.  ''Zee  v.  Waller,  13  Brarl.  403. 

'  Meyer  v.  Wiltshire,  92  111.  395.  ^  Richards  v.  People,  100  111.  390; 

^Leadbeater  v.  Roth,  25  111.  587;  BaJcer  v.  Palmer,  83  III  5GS. 

Buckland  v.   Goddard,  36  111.  208;  *  Buckmaster  v.  Beames,  3  Giim. 

97. 


16  COMMENCEMENT   OF   AN    ACTION. 

the  commGncement  of  any  suit  by  a  resident  of  this  state,  he 
shall  become  non-resident,  or  if  in  any  case  the  court  shall  be 
satisfied  that  any  plaintiff  is  unable  to  pay  the  costs  of  suit,  or 
that  he  is  so  unsettled  as  to  endanger  the  officers  of  the  court, 
with  respect  to  their  legal  demands,  it  shall  be  the  duty  of  the 
court,  on  motion  of  the  defendant  or  any  officer  of  the  court, 
to  rule  the  plaintiff,  on  or  before  a  day  in  such  rule  named,  to 
give  security  for  the  payment  of  costs  in  such  suit;  if  such 
plaintiff  shall  neglect  or  refuse,  on  or  before  the  day  in  such 
rule  named,  to  file  an  instrument  of  writing  of  some  responsi- 
ble person,  being  a  resident  of  this  state,  whereby  he  shall  bind 
himself  to  pay  all  costs  which  have  accrued  or  may  accrue  in 
such  action,  the  court  shall,  on  motion,  dismiss  the  suit,  pro- 
vided, that  the  defendant  or  officer  making  such  motion  shall 
file  therewith  his  affidavit  or  the  affidavit  of  some  credible 
person,  stating  that  he  has  reason  to  believe,  and  does  believe, 
that  in  case  such  suit  is  prosecuted  to  a  conclusion,  a  judgment 
will  be  rendered  against  such  plaintiff  for  such  costs."  ' 

The  motion  for  a  rule  on  the  plaintiff  to  give  security  for 
costs  is  usually  based  upon  the  affidavit  of  the  defendant,  or 
the  officer  or  person  at  whose  instance  the  application  is  made, 
setting  forth  the  ground  upon  which  the  rule  is  asked.  Such 
affidavit  may  be  as  follows : 

Affidavit  for  rule  to  give  security  for  costs. 

In  the court. 

CD.) 
ats.   >  Assumpsit, 

A.  B.  )  CD.,  the  above  named  defendant,  makes  oath  and  says,  that 
A.  B.,  the  plaintiff  above  named,  is  unable  to  pay  the  costs  of  this  suit  {or 
state  any  other  ground  mentioned  in  the  statute);  affiant  further  states  that 
he  has  reason  to  believe,  and  does  believe,  that  in  case  said  cause  is  pros- 
ecuted to  a  conclusion,  a  judgment  will  be  rendered  against  the  plaintiff 
for  such  cost. 

CD. 

Subscribed  and  sworn,  etc. 

The  plaintiff  may  file  a  counter  affidavit,  denying  the  insolv- 
ency, or  other  matter;  and  in  that  case,  it  seems,  the  rule  will 

'  Starr  &  Curtis,  637;  Rev.   Stat.  (1893),  394;  Rev.  Stat.  (1895),  432. 


COMMENCEMENT    OF   AN   ACTION.  17 

be  discharged.'  Such  motions  are  addressed  to  the  discretion 
of  the  courts,  and  their  decisions  thereon  can  not  in  general  be 
assigned  for  error; "  but  if  the  affidavit  in  support  of  the  motion 
is  insufficient,  the  court  has  no  power  under  the  statute  to  grant 
the  rule,  and  if  it  does  so,  its  decisions  may  be  reviewed  in  an 
appellate  court.'  Motions  of  this  kind,  it  is  said,  are  not 
regarded  very  favorably  by  the  courts,  and  slight  evidence  has 
usually  been  held  sufficient  to  discharge  the  rule.    . 

Upon  a  motion  for  a  rule  upon  the  plaintiff  to  file  additional 
security  for  costs,  an  affidavit  is  insufficient  which  only  avers 
the  insolvency  of  the  plaintiff  and  his  surety.  It  should  show, 
in  addition,  that  the  circumstances  of  the  principal  or  surety 
have  changed  since  the  approval  of  the  former  security.^ 

On  an  appeal  by  the  defendant  from  a  judgment  of  a  justice 
of  the  peace,  an  appellate  court  w^ill  not  grant  a  rule  on  the 
plaintiff  to  give  security  for  costs.^  After  the  cause  has  been 
called  for  trial,  a  motion  for  a  rule  to  give  security  for  costs 
comes  too  late,  even  though  the  affidavit  sets  forth  that  the 
affiant  has  just  learned  that  the  plaintiff  is  insolvent." 

Where  an  action  is  brought  in  the  name  of  one  person  for 
the  use  of  another,  and  the  defendant  moves  for  a  rule  to  give 
security  for  costs,  it  is  not  sufficient  for  the  affidavit  to  show 
the  insolvency  or  non-residence  of  the  nominal  plaintiff,  but  it 
must  also  show  that  the  beneficial  plaintiff  is  insolvent  or  non- 
resident.'' 

If  security  for  costs  is  given  after  action  is  brought,  the  form 
of  the  instrument  may  be  as  follows : 

'  Hamilton  v.  Dunn,  23  111.    259;  *  Ball  v.  Bruce,  27  111.  333. 

Papineau  v.  Belgarde,  81  111.  61.  ^  Teague    v.    Wells,   Breese.    877; 

*  Selhy  V.  Hutchinson,  4  Gilm.  319;  Campbell  v.  Qiblin,  19  111.  54;  Adams 

Gesford  v.    Critzer,   2    Gilm.    698;  v.  Miller,  12  III.  28. 

Clement  v.  Brown,  30  111.  43;  Rail-  «  Railroad  Co.  v.  South,  43  111.  176. 

road  Co.  v.  South,  43  111.  176;  CCon-  Edicards  v.  Helm,  4  Scam.  143;  Fra- 

ndl  V.  Rea,  51  111.  306.  zer  v.  Zimmerly,  25  111.  184;  Caton 

3  Ball  V.  Bruce,  27  111.  332;  Teague  v.  Harmon,  1  Scam.  581. 

V.  Wells,   Breese.   377;  Rockford  v.  '  UConnel  v.  Rea,  51  lU.  306. 
Russell,  9  Bradw.   229;  Twining  v. 
Martin,  65  111.  157. 
2 


18  COMMENCEMENT    OF   AN    ACTION. 

Security  fur  costs. 

In  the Court. 

A.  B.      ) 
vs.        >  Assumpsit. 
CD.      )      I  hereby  enter  myself  security  for  costs  in  this  cause,  and 
acknowledge  myself  bound  to  pay,  or  cause  to  be  paid,  all  costs  which  have 
accrued,  or  may  accrue,  in  this  action,  either  to  the  opposite  party  or  to 
any  of  the  officers  of  this  court,  in  pursuance  of  the  laws  of  this  state. 

Dated  this day  of ,  18 — . 

E.  F. 

Plaintiff  a  poor  person. — The  statute  provides  as  follows  : 
"  If  any  court  shall,  before  or  after  the  commencement  of  any 
suit,  be  satisfied  that  the  plaintiff  is  a  poor  person,  and  unable 
to  prosecute  his  suit,  and  pay  the  costs  and  expenses  thereof, 
the  court  may,  in  its  discretion,  permit  him  to  commence  and 
prosecute  his  action  as  a  poor  person;  and  thereupon  such 
person  shall  have  all  the  necessary  writs,  process  and  pro- 
ceedings, as  in  other  cases,  without  fee  or  charge.  The  court 
may  assign  to  such  person  counsel,  who,  as  well  as  all  other 
officers  of  the  court,  shall  perform  their  duties  in  such  suit  with- 
out any  fees,  charge  or  reward;  if  judgment  be  entered  for  the 
plaintiff,  there  shall  be  judgment  for  his  costs,  which  costs 
shall  be  collected  for  the  use  of  the  said  officers."  ' 

Allowing  the  plaintiff  to  sue  as  a  poor  person,  or  requiring 
security  for  costs,  is  discretionar}'-  with  the  trial  court.^  This 
section  is  broad  enough  it  its  terms  to  include  all  resident 
plaintiffs,  whether  they  be  adults  or  minors,  who  are  poor  per- 
sons, and  are  unable  to  prosecute  their  suits  and  pay  costs  and 
expenses.  * 

Affidavit  of  poor  person. — The  statute  also  provides  that 
"  If,  prior  to  the  convening  of  any  term  of  any  court  of  record,  a 
person  desiring  to  commence  suit  in  such  court,  shall  file  with 
the  clerk  thereof  an  affidavit  stating  that  he  is  a  poor  person 
and  unable  to  pay  costs,  and  that  his  cause  of  action  is  merito- 
rious, such  clerk  shall  issue  and  the  sheriff  shall  serve  all  nec- 
essary process,  without  requiring  costs." 

A  motion  for  leave  to  prosecute  as  a  poor  person,  under  this 

'  1  Starr  &  Curtis,  638;  Rev.  Stat.  '  Clement    v.   Broivn.  30  111.    48; 

(1893),  395;  Rev.  Stat.  (1895),  433.  Eockford  v.  Russell,  9  Bradw.  229. 

»  B.  R.  Co.  V.  Lane,  130  111.  116. 


COMMENCEMENT   OF   AN    ACTION.  J  9 

section,  should  be  supported  by  an  affidavit,  which  may  be  as 
follows : 

Affidavit  on  motion  for  leave  to  prosecute  as  a  poor  x)erson. 

(Venue,  and  title  of  cause.) 

A.  B.,  the  above  named  plaintiff,  makes  oath  and  says,  that  he  is  a  poor 
person,  and  unable  to  prosecute  his  suit  in  this  behalf,  and  pay  the  costs 
and  expenses  thereof;  that  he  is.  etc.  {here  insert  any  other  fact  shoicing 
the  jilaintiff's  inability  to  give  security  or  to  pay  costs);  that  he  has  reason  to 
believe,  and  does  believe  that  he  has  a  meritorious  cause  of  action  and  that 
he  will  recover  a  judgment  against  the  defendant. 

A.  B. 

Subscribed  and  sworn  to,  etc. 

Permitting  a  plaintiff  to  sue  as  a  poor  person  is  generally  a 
matter  within  the  discretion  of  the  court.' 

PARTIES    TO  AN    ACTION. 

A  suit  must  be  brought  by  the  party  who  has  the  legal  in- 
terest,'' and  in  his  own  name.^  Courts  of  law  will  not  inquire 
whether  plaintiff  sues  for  himself  or  as  trustee;  it  is  sufficient 
that  he  has  a  legal  interest."  When  a  suit  is  brought  by  the 
party  holding  the  legal  interest,  the  action  can  not  be  defeated 
by  showing  that  another  person  is  entitled  to  the  proceeds.^ 
An  action  for  a  breach  of  contract  must  be  brought  by  the 
party  with  whom  the  contract  was  made."  By  whatever  name 
a  person  may  contract,  he  may,  notwithstanding,  sue  and  be 
sued  by  his  right  name.' 

"Where  a  number  of  persons  associated  in  business  are  known 
to  the  world  and  transact  business  by  a  particular  name,  in  a 

^Clement   v.  Brown,  30    111.    43;  ^  Kyle  v.  Thompson,  2  Scam.  432 

Kockford  v.  Russell,  9  Bradw.  229;  Richards    v,     Betzer,    53    111.  460 

Sterling  v.  Pearl,  80  111.  251;  Papi-  Newman  v.  Ravenscraft,  67  111.  496 

neau  v.  Belgarde,  81  111.  61.  Caldtcell  v.  Lau-rence,  84  111.  161. 

^  Chadsey  v.  Lewis,   1  Gilm.    153  *Lee\\  Pennington,!  Bradw.  2\1; 

Manlove  v.  McHatton,  4  Scam.  96;  Chapin  v.  Foss,  75  111.  280. 

Simons  v.  Waterman,    17  111.    371;  ^  Lohman  r .  Bank,  87  111.  Q\Q. 

Dix  X.  Ins.  Co.,  22  111.  272;  Moore  V.  ^  Corbett  v.    Schumacker,   83  111. 

Maple,  25  111.  341 ;  Ins.  Co.  v.  Frost,  403. 

37  111.333;  Lamed  v.  Carpenter,  m  '' Steinfield  \.  Taylor,  51  111.  App. 

111.    543;    Coal   Co.  v.  Long,  91  111.  399. 
617;  Dinet  v.  Reilley,  2  Bradw.  316. 


20  COMMENCEMENT   OF   AN    ACTION. 

suit  against  the  members,  they  may  be  described  as  members 
of  an  association  of  that  name,  and  they  can  not  defeat  a  re- 
covery by  showing  that  in  their  articles  of  association  they 
adopted  a  different  name.'  In  the  case  of  a  simple  contract,  an 
undisclosed  principal  may  bring  an  action  in  his  own  name, 
where  the  agent  contracts  personally.^  Judicial  proceedings 
commenced  and  prosecuted  in  the  name  of  a  deceased  per- 
son are  a  nullity.^  An  executor  or  administrator  may  sue  as 
such,  as  well  as  in  his  own  name,  upon  a  contract  made  with 
him  in  his  representative  capacity.  In  either  case,  the  sum  re- 
covered will  be  held  to  be  for  the  benefit  of  the  estate." 

All  persons  who  are  partners  in  a  firm  at  the  time  a  contract 
is  made,  must,  unless  there  be  a  legal  excuse  for  not  joining 
them,  be  joined  in  an  action  to  enforce  its  payment.  If  a 
partner  be  dead,  the  plaintiff  suing  must  allege  it  as  an 
excuse  for  not  joining  him.' 

Suits  for  the  use  of  auother. — The  assignee  of  a  chose  in 
action  can  only  maintain  a  suit  at  law  in  the  name  of  the  as- 
signor, for  his  use."  A  party  for  whose  benefit  a  promise  is 
made  may  maintain  an  action  upon  a  simple  contract  in  his 
own  name,  although  the  consideration  does  not  move  from 
him.''  But  it  has  been  held  that  where  the  contract  is  under 
seal,  the  action  must  be  in  the  name  of  the  obligee,  although 
the  agreement  may  be  for  the  use  of  another.* 

A  party  in  whom  is  the  legal  right  of  action  may,  as  re- 
spects the  defendant,  bring  his  suit  for  the  use  of  whatever 
person  he  likes.  It  is  no  concern  of  the  defendant  for  whose 
use  the  action  is  brought,  nor  is  it  necessary  that  the  person 

'Boggsv.  OZcoff,  40111.  303.  7ns.   Co.   v.   Ludwig,   103   111.   305; 

*Chit.  PI.  9;  Turnpike  y.  Whiting,  Knight  v.  R.  R.  Co.,  141  111.  110. 

10  Mass.  328;  1  Pars.  Cont.  62;  Conk-  '  Crandall  v.  Payne,  154  111.  627; 

linv.  Leeds,  5S  111.  178;  Saladinv.  Steele  v.  Clark,  11  111.  471;  Bristoio 

Mitchell,  45  111.  79;    R.  R.   Co.  v.  v.    Lane,  21  111.   194;  Paper  Co.  v. 

Walsh,  85  111.  58.  Serman,  29  111.  App.  68. 

^Risley  v.  Felloics,   5  Gilm.  531;  ^Gautzert  v.    Hoge,    73    111.    30; 

Mills  V.   Bland,  76  111.   381;   Cam-  Moore  x.  House,  MIW.  \&2;  Boats  v. 

den  V.  Robertson,  2  Scam.  507.  Nixon,    26    111.   App.   517;   but    see 

*  Miller  v.  Kingsbury,  128  111.  45.  Harms  v.  McCormick,  30  111.  App. 

^Dement  v.  Rokker,  126  111.  174.  125. 

^Carlyle  v.  Carhjle,  140  111.  445; 


COMMENCEMENT   OF   AN    ACTION.  21 

for  whose  use  the  action  is  brought  should  have  any  interest 
or  connection  otherwise  with  the  subject-matter  of  the  suit.' 

The  fact  that  one  person  sues  for  the  use  of  another  does 
not  make  the  person  for  whose  use  the  suit  is  brought  a  party 
to  it,  nor  is  the  judgment  rendered  a  judgment  in  his  favor." 
The  fact  that  a  suit  is  brought  for  the  use  of  a  third  person 
need  not  be  expressed  in  the  record.^ 

Suits  against  insane  persons. — Jurisdiction  of  an  insane 
person  may  be  acquired  by  the  courts  in  the  same  manner  as 
jurisdiction  of  a  sane  person."  AVhere  an  insane  person  is 
properly  brought  before  the  court  by  personal  service,  the 
judgment  rendered  against  him  will  be  as  valid  and  binding  as 
any  other  judgment,  and  is  said  to  be  neither  void  nor  voida- 
ble.* By  the  statute,  the  conservator  of  a  lunatic  is  empow- 
ered to  bring  suit  in  his  own  name,  as  conservator,  for  demands 
due  his  ward.*  But  until  the  appointment  and  qualification 
of  a  conservator  for  an  insane  person,  a  suit  may  be  brought 
in  the  name  of  such  insane  person.' 

The  statute  also  provides  that  the  court  may  in  its  discre- 
tion appoint  a  next  friend  for  a  particular  purpose,  notwith- 
standing there  is  already  a  conservator  possessing  general 
authority.' 

Suits  against  infants. — The  statute  provides  that  the  guard- 
ian of  an  infant  shall  appear  for  and  represent  his  ward  in 
all  suits  or  proceedings,  unless  another  person  is  appointed  for 
that  purpose  as  guardian  or  next  friend,  provided  that  any 
court  shall  have  power  to  appoint  or  allow  any  person,  as  next 
friend  for  a  minor,  to  commence  and  prosecute  a  suit  in  his  be- 
half.' The  court  is  clothed  with  a  discretion  in  appointing  or 
allowing  one  other  than  the  guardian  to  institute  a  suit  on 

'  Tedrick  v.  Wells,  59  111.  App.  657;  '  Moloney  v.  Dewey,  127  III.  395. 

Edimn    v.    Cox,    61    111.  App.    567;  « 2  Starr  &  Curtis,  1577;  Rev.  Stat. 

Ins.  Co.  V.  Barnish,  59  111.  App.  78.  (1893),  954;  Rev.  Stat.  (1895),  1016. 

">  Morse  V.  Goetz,  51  111.  App.  485;  ^  R.  R.  Co.  v.  Munger,  78  111.  300. 

ISIorthrop  v.  McGee,  20  111.  App.  108.  ^  2  Starr  &  Curtis,  1577;  Rev.  Stat. 

^Ex.  Co.  V.  Hazzard,  37  111.  465.  (1893),  954;    Rev.    Stat.   (1895),  1016; 

*  Noel  v.  M.  W.  A.,&\  111.  App.  iJyc/er  v.  ThppiMgf,  15  Bradw.  216. 
597;  Freeman  on  Judgments,    Sec.  ^  1  Starr  &  Curtis,  393;    Rev.  Stat 

123.  (1893),  217;  Rev.  Stat.  (1895),  218. 


22  COMMENCEMENT    OF    AN    ACTION. 

behalf  of  an  infant.  This  discretion  is  necessary  to  prevent 
many  suits  in  reference  to  the  same  subject-matter  being 
brouirlit  in  behalf  of  an  infant.* 

PKOCESS    FOK   APPEARANCE. 

Summons — Form^Wlien  returnable. — Section  1  of  the 
Practice  Act  provides  that  the  first  process  in  all  actions  shall 
be  a  summons  directed  to  the  sheriff  of  the  county  (or  if  the 
sherilf  be  interested  in  the  suit,  to  the  coroner)  and  shall  be 
made  returnable  on  the  first  day  of  the  next  term  of  the  court 
to  which  the  action  may  be  commenced.  That  if  ten  da^'^s 
shall  not  intervene  between  the  time  of  suing  out  the  sum- 
mons and  the  next  term  of  court,  it  shall  be  made  returnable 
to  the  succeeding  term,  and  that  the  plaintiff  may,  in  any  case, 
have  summons  made  returnable  at  any  term  of  the  court  which 
may  be  held  within  three  months  after  the  date  thereof.^  A  sum- 
mons made  returnable  eight  terms  after  date  is  void."  It  must 
be  under  seal,^  and  contain  the  names  of  all  the  plaintiffs;'  and 
when  the  summons  is  dated  less  than  ten  days  before  the  re- 
turn day  it  is  void.*  When  a  summons  is  held  void  it  will  be 
quashed  on  motion.' 

How  served. — Section  3  provides  that  it  shall  be  the  duty 
of  the  sheriff  to  serve  all  process  of  summons,  when  practicable, 
ten  days  before  the  return  day  thereof,  and  to  make  return 
thereof  by  or  on  the  return  day,  with  an  indorsement  of  his 
service  and  the  time  of  serving  it.'  The  statutory  require- 
ments for  service  of  process  must  be  strictly  complied  with, 
and  the  return  of  the  officer  should  show  such  compliance, 
otherwise  the  court  will  not  obtain  jurisdiction.' 

The  mode  of  service  of  summons,  where  not  otherwise  pro- 

9  Patterson  v.  Pullman,  104  111.  80.  "  Carter  v.  Rodeicold,  108  111.  351. 

'  StaiT  &  Curtis,   1771;  Rev.  Stat.  ^  Hannum  v.  Thompson,  1  Scam. 

(1893),  1070;    Rev.  Stat.  (1895),  1154;  238;  Anglin  v.  Nott,  1  Scam.  395. 

Edimrds  v.  Having,  59  111.  App.  147-  '  2    Starr    &    Curtis,    1775;    Rev. 

=  See  Hochlander  v.  Hochlander.  Stat.  (1893),  1071;  Rev.    Stat.  (1895), 

73  111.  618.  1155;  French  v.  Regan,  58  111.  App. 

^  Garland  v.  Britton,  12  111.  233.  261. 

*  Richardson  v.  Thompson,  41  111.  ^  Greenwood  v.  Murphy,   131  111. 

202;  Miller  v.  Handy,  40  III.  448.  604. 


COMMENCEMENT   OF   AN    ACTION.  23 

vided  by  statute,  is  by  reading  the  same  to  the  defendant,  and 
the  service  by  delivering  a  copy  thereof  to  the  defendant  with- 
out reading  is  insufficient.'  Where  a  summons  is  read  in  the 
hearing  of  a  defendant,  though  the  officer  addressed  himself  to 
his  clerk,  both  the  clerk  and  he  being  aware  of  the  officer's  mis- 
take, it  was  held,  that  as  what  is  read  in  the  hearing  of  several 
persons  is  read  to  all  of  them,  even  though  the  reader  ad- 
dresses only  one  especially,  the  service  was  sufficient." 

Alias  writs. —  Section  8  provides  that  whenever  it  shall  ap- 
pear by  the  return  of  the  sheriff  that  the  defendant  is  not 
found,  the  clerk  shall  at  the  request  of  the  plaintiff  issue  an- 
other, and  so  on  until  service  is  had.' 

Corporations — How  served. — It  is  provided  by  section  4  of 
the  Illinois  Practice  Act,  that  "An  incorporated  company  may 
be  served  with  process  by  leaving  a  copy  thereof  with  its  presi- 
dent, if  he  can  be  found  in  the  county  in  which  the  suit  is 
brought;  if  he  shall  not  be  found  in  the  county,  then  by  leav- 
ing a  copy  of  the  process  with  any  clerk,  secretary,  superin- 
tendent, general  agent,  cashier,  principal,  director,  engineer, 
conductor,  station  agent  or  any  agent  of  said  company  found 
in  the  county;  and  in  case  the  proper  officer  shall  make  re- 
turn upon  such  process  that  he  can  not  in  his  county  find  any 
clerk,  secretary,  superintendent,  general  agent,  cashier,  princi- 
pal, director,  engineer,  conductor,  station  agent,  or  any  other 
agent  of  said  company,  then  such  company  may  be  notified  by 
publication  and  mail  in  like  manner  and  with  like  effect,  as  is 
provided  in  sections  twelve  and  thirteen  of  an  act  entitled  'An 
act  to  regulate  the  practice  in  courts  of  chancer}^'  " 

It  has  been  held  that  the  foregoing  section  is  to  be  so  con- 
strued as  to  render  it  in  harmony  with  section  2  of  the  Practice 
Act,  and  does  not  authorize  service  on  a  corporation  by  publica- 
tion, except  in  the  county  where  it  has  its  residence.'  The 
vice-president  of  a  corporation  is  an  "agent,"  Avithin  the  mean- 
ing of  the  statute,  and  process  against  the  corporation  may  be 
served  upon  him  as  such.' 

>  LaiP  V.  Gromvies,  158  111.  492.  ^  Coal  Co.  v.  Hughes,  45  111.  App. 

*  Metzger  v.   Huntington,  51   111.      566. 
App.  377.  ''  Cook  V.  Building  Co.,  152  111.  638. 

3  2  Starr  &  Curtis,  1779;  Rev.  Stat. 
(1893),  1072;    Rev.  Stat.  (1895),  1156. 


24  COMMENCEMENT    OF   AN    ACTION. 

A  general  solicitor  of  a  corporation  is  a  person  not  named 
in  the  statute  providing  for  service  of  process  upon  corpora- 
tions.' When  a  corporation  has  suffered  a  person  to  hold  him- 
self out  to  the  public  as  its  agent,  so  as  to  render  it  inequitable 
for  the  apparent  agency  to  be  denied,  service  of  process  upon 
such  agent  will  be  sufficient.'  It  has  been  held  that  where 
process  is  returned  served  upon  one  as  the  agent  of  a  corpora- 
tion, the  agency  may  be  denied  by  plea  in  abatement.^ 

On  receiver  of  corporation. — It  is  provided  in  an  act  en- 
titled "An  act  in  regard  to  the  serving  of  process  on  Eeceivers 
of  Corporations,"  in  force  July  1,  1887 : 

"  That  the  receiver  or  receivers  of  any  incorporated  com- 
pany may  be  served  with  process,  by  leaving  a  copy  of  such 
process  with  such  receiver  or  receivers,  if  he  or  they  can  be 
found  in  the  county  in  which  the  suit  is  brought;  if  he  or  they 
shall  not  be  found  in  the  county,  then  by  leaving  a  copy  of 
such  process  with  any  clerk,  secretary,  superintendent,  general 
agent,  engineer,  conductor,  station  agent  or  any  agent  in  the 
employ  of  such  receiver  or  receivers,  who  may  be  found  in  the 
county  in  which  such  suit  is  brought."  * 

On  trustee  of  railroad. — Section  1  of  paragraph  103  of 
the  Practice  Act  provides  that  a  trustee  or  trustees  operating, 
managing,  or  controlling  a  railway  may  be  served  with  process 
by  leaving  a  copy  of  such  process  with  such  trustee  or 
trustees,  if  he  or  they  can  be  found  in  the  county  in  which  the 
suit  is  brought;  if  he  or  they  shall  not  be  found  in  the  county, 
then  by  leaving  a  copy  of  such  process  with  any  clerk,  secre- 
tary, superintendent,  general  agent,  engineer,  conductor,  sta- 
tion ao"ent,  or  any  agent  in  the  employ  of  such  trustee  or 
trustees  who  may  be  found  in  the  county  in  which  such  suit  is 
brought.* 

Privileges  of  defendant. — It  is  a  principle  as  old  as  the 
common  law,  that  all  persons  who,  in  the  discharge  of  their 

'  R.  R.  Co.  V.  Pairpoint  Mfg.  Co.,  v.  Bank,  90  111.  56;  Lanza  v.  Mc- 
55  111.  App.  231.  Nulta,  46  111.  App.  69. 

'■'  Combs  V.  Oil  Co.,  58 111.  App.  123.  "  Rev.  Stat.  (1893),  1072. 

^R.  R.  Co.y.  Keep,  22  111.  9;  Bank         'Rev.  Stat.(  1893),  1086;  Rev,  Stat. 

(1895),  1170. 


COMMENCEMENT    OF    AN    ACTION.  25 

duty,  are  in  attendance  upon  courts  of  justice,  and  in  going 
to  and  returning  therefrom,  are  exempt  from  arrest  on  civil 
process.  This  is  a  privilege  which  extends  alike  to  parties, 
witnesses,  attorneys,  jurors,  and  all  others  who  are  assisting 
in  the  administration  of  justice;  and  this  immunity  does  not 
extend  alone  to  persons  who  are  in  the  immediate  presence  of 
the  courts  themselves,  but  to  those  also  who  are  in  attend- 
ance upon  subordinate  tribunals,  and  officers  appointed  by  the 
courts  to  assist  them  in  the  discharge  of  their  duties.  Thus,  it 
is  held  to  extend  to  a  party  attending  the  execution  of  a  writ 
of  inquiry; '  to  a  witness  attending  before  a  magistrate  to  give 
his  deposition  under  a  rule  of  court; '  to  a  witness  attending  be- 
fore a  commissioner  for  a  like  purpose;^  to  a  creditor  or 
witness  attending  commissioners  of  a  bankrupt;  *  to  witness 
before  arbitrators; '  and  to  a  party  attending  a  reference  under 
a  rule  of  court." 

A  party  while  engaged  in  taking  depositions  to  be  used  in 
his  suit  in  another  state,  and  for  such  time  thereafter  as  is 
necessary  to  return  to  his  home  in  that  state,  is  not  privileged 
from  the  service  of  a  summons.' 

The  exemption  is  alike  the  privilege  of  the  person  and  the 
privilege  of  the  court,  and  it  is  designed  to  render  the  admin- 
istration of  justice  free  and  unstranded,  and  to  protect  from 
improper  influence  all  who  are. concerned  in  it.* 

The  weight  of  authority  seems  to  be  clearly  in  favor  of  the 
proposition  that  as  regards  this  privilege,  there  is  no  difference 
between  writs  of  capias  ad  respondendum  and  writs  of  sum- 
mons, but  that  the  exemption  extends  to  both  alike.' 

The  return. — The  return  of  the  service  of  a  summons,  ex- 
cept when  otherwise  provided  by  the  statute,  must  show  the 

1  Walters   v.   Rees,  4    Moore    34;  *  Clark  v.  Grant,  2  "Wend.  356. 

Atchison  v.  Morris,  11  Bissell  191.  ''Greer  v.  Youngs,  120  111.  184, 

^United  States  v.  Edme,  9  Serg.  ^ Greer  v.  Youngs,  120  111.  184. 

&  Rawle  147.  ^  Hayes  v.  Shields,   2  Yeates  222; 

^Holmes  v.  Morgan,  1  Phila.  217.  Bolton  v.  Martin,  1  Dall.  296;  MiUes 

*Ex  parte  King,  7  Vesey  312;  Ex  v.  McCuUough,  1  Binney,  77;  Dugan 

parte  Byne,  1  Ves.  &  B.  316.  v.  Miller,  8  Vroom  782;   Greer  v. 

^Sandford  v.  Chase,  S  Cowen  381;  Youngs,  supra. 
Randall  v.  G^iney,  1  Chitty  R.  679. 


26'  C03IMENCEMENT    OF    AN    ACTION, 

time  when,  upon  whom,  and  how  the  service  was  made.  A 
return,  statino;  that  the  summons  has  been  duly  served  on  "  C. 
D."  according  to  law,  is  not  sufficient.' 

The  service  must  be  made  strictly  in  accordance  with  the 
statute,  and  so  shown  by  the  returns  of  the  officer,  or  the  court 
will  not  have  jurisdiction  of  the  person.*  Where  service  is  by 
summons,  parol  evidence  will  not  be  heard  to  prove  or  to  aid 
it.'  A  return  of  service  "  on  the  within  named  defendant," 
not  giving  the  name,  there  being  two  defendants  named  in 
the  summons,  is  insufficient.* 

TUE    DECLARATION. 

The  province  of  the  declaration  is  to  exhibit  on  the  record 
the  grounds  of  the  plaintiflf's  cause  of  action,  as  well  for  the 
purpose  of  notifying  the  defendant  of  the  precise  character  of 
those  grounds,  as  of  regulating  the  plaintiff's  proofs.  When 
it  performs  such  office  in  such  a  manner  as  to  leave  no  doubt 
in  the  mind  of  the  defendant,  either  as  to  the  nature  or  origin 
of  the  plaintiff's  claim,  it  ought  not,  on  principle,  to  be  ad- 
judged insufficient;'  but  it  must,  in  every  case,  contain  a  full 
and  explicit  statement  of  the  material  facts  upon  which  a  re- 
covery is  sought." 

Each  count  in  a  declaration  must  truly  set  out  the  cause  of 
action,  and  if  the  evidence  does  not  sustain  it,  the  action  as  to 
such  count  fails."  It  is  proper  for  the  pleader  to  state  what 
is  in  reality  the  same  cause  of  action,  in  several  counts  of  his 

1  Ball  V.  Shattack,  16  111.  299;  Wil-  v.  Thomas,  39  111.   227;   7.  C.  R.  R. 

son  V.  Greathouse,  1  Scam.  174,  176;  Co.  v.  McKee,  43  111.   119;  People  v. 

Bellingall    v.    Gear,    3    Scam.    575;  Latie,  36  III.  App.  649. 

Miller  V.  Handy,  40  111.  448.  « I.  C.  R.  R.  Co.  v.  McKee,  43  111. 

^Cost  V.    Rose,  17   111.    276;    Boy-  119;  Qnincy  Coal  Co.  y.  Hood,  17  III. 

land  V.  Boylaud,  18  111.  551;  Miller  68;   Dole  v.  Cloio,  21   111.  App.  477; 

V.  Mills,  29  111.  431;  Fisher  v.  Fisher,  R.  R.  Co.  v.  Friedman,  146  111.  583. 

54111.  231;    Greenwood  v.  Murphy,  ''  Mastinv.  Toncray,  2  Scam.  216; 

131  111.  604.  Crittenden  v.    French,   21   111.  598; 

3  Botsford  V.  O'Connor,  57  111.  72;  Boynton  v.  Robb,  41  111.  349;  Roberts 

Reedy  v.  Canfleld,  159  111.  260.  v.  Corby,  86  111.  182;  Brown  v.  Bur- 

*  Whitman  v.  Fisher,  74  111.  147.  nett,  10  Bradw.  279;  Porter  v.  Dren- 

5  Cook  V.  Scott,  1  Gilm.  333;  Quincy  nan,  13  Bradw.  362. 
Coal  Co.  V.  Hood,  77  111.  68;  White 


COMMENCEMENT    OF    AN    ACTION.  2i 

declaration,  the  purpose  being  to  meet  the  varying  phases  of 
the  evidence.  When  this  is  done,  the  counts  are  to  be  re- 
garded as  distinct  from  each  other,  and  by  apt  reference, 
or  otherwise,  must  state  a  complete  cause  of  action,'  and  the 
plaintiff  will  be  entitled  to  recover,  if  he  proves,  by  a  prepon- 
derance of  the  evidence,  either  ground  of  action.^  Two  distinct 
causes  of  action  can  not  be  set  up  in  a  single  count  of  the 
declaration;"  but  as  many  distinct  facts  as  maybe  necessary 
to  present  one  cause  of  action  may  be  set  forth  in  one  count/ 

Variance. — The  defendant  has  the  right  to  insist  that  the 
grounds  upon  wliich  the  plaintiff  claims  the  right  to  recover 
shall  be  clearly  and  concisely  stated,  and  that  the  case  made 
in  the  declaration  shall  be  proven  as  alleged.  One  cause  of 
action  can  not  be  alleged  and  a  different  one  proved,  over  the 
defendant's  objection  made  in  proper  time." 

Under  our  present  practice  to  present  the  question  of  vari- 
ance between  the  allegations  and  proof,  the  evidence  must  be 
objected  to  at  the  time  it  is  offered  on  that  ground,  or,  when 
the  variance  becomes  apparent,  the  party  should  move  to 
exclude  the  evidence,  or  in  some  other  appropriate  way  raise 
that  question,  so  that  the  trial  court  can  pass  upon  it;  and  to 
properly  raise  the  question  in  any  of  these  modes,  the  variance 
should  be  distinctly  pointed  out,  so  as  to  enable  the  trial  court 
to  pass  upon  it  understandingly,  and  enable  the  plaintiff  to 
obviate  the  objection  by  amendment.* 

Additional  connts. — Under  section  24:  of  the  Practice  Act, 
additional  counts  may  be  filed  at  any  time  before  final  judg- 
ment, by  leave  of  court.' 

'  R.  R.  Co.  V.  Hessions,  150  111.  546.  Waidner  v.  Pauhj,  141  III.  442;  City 

^R.  R.  Co.  V.  Cloiigh,  134  111.  586;  v.  3Ioore,  139  111.  201;  Foltz  v.  Har- 

3  R.  R.  Co.    V.  Hill,  29  111.  App.  din,  139  III.  405;    Schoot  v.  Youree, 

583;  R.  R.  Co.  v.  Ingraham,  131  111.  142  111.  233;  Turnkey  v.   Hedstroin, 

665.  131  III.  204;  R.  R.  Co.  v.  Colton,  140 

*  White    V.    Clayes,     32    III.    325;  111.  486. 

Hereford  v.  Crow,  3  Scam.  423;  Ins.  '2  Starr  &  Curtis,  1787;  Rev.  Stat. 

Co.  V.  Wuster,  75  111.  285.  (1893),  1074;  Rev.  Stat.  (1895),    1158; 

'^  R.   R.  Co,  V.  Friedman,   146  111.  Mutual    Aid    v.    Paine,     122     111. 

583.  625;  Meinke  v.  Nelson,  56  111.  App. 

6  Libhy  v.  Seherman,  146  111.  540;  269. 

Richelieu  v.  Enc.  Co.,  140  111.  248; 


28  COMMENCEMENT   OF   AN    ACTION. 

Time  for  filing. — By  section  17  of  the  Practice  Act,  it  is 
provided  that  "  If  the  phiintiff  shall  not  file  his  declaration, 
together  with  a  copy  of  the  instrument  of  writing  or  account 
on  which  the  action  is  brought,  in  case  the  same  be  brought 
on  a  written  instrument  or  account,  ten  days  before  the  court 
at  which  the  summons  or  capias  is  made  returnable,  the  court, 
on  motion  of  the  defendant,  shall  continue  the  cause  at  the 
cost  of  the  plaintiff,  unless  it  shall  appear  that  the  suit  was 
commenced  within  ten.  days  of  the  sitting  of  the  court,  in 
which  case  the  cause  shall  be  continued  without  costs,  unless 
the  parties  shall  agree  to  have  a  trial;  and  if  no  declaration 
shall  be  filed  ten  days  before  the  second  term  of  the  court, 
the  defendant  shall  be  entitled  to  a  judgment,  as  in  case  of  a 
non-suit :  Provided,  that  in  all  suits  by  capias,  where  the  de- 
fendant shall  have  been  arrested,  and  in  replevin  and  attach- 
ment, the  plaintiff  may  be  required  to  file  his  declaration  at 
the  first  term,  and  the  defendant  may  have  a  trial  at  such  term, 
unless  sufficient  cause  for  a  continuance  is  shown,"  ' 

Copy  of  instrument  or  account  sued  on. — If  the  document 
sued  on  is  set  out  in  haec  verla  in  the  declaration,  an  additional 
copy  is  not  necessary  to  be  filed.'  If  the  declaration  contains 
a  special  count  on  a  promissory  note  or  bill  of  exchange,  etc., 
and  common  counts,  and  if  the  plaintiff  stipulates  that  he  will 
rely  alone  on  the  instrument  described,  no  accounts  need  be 
filed  under  common  counts."  In  Such  case  the  defendant  will  be 
prevented  from  denying  the  execution  of  the  instrument, 
except  by  a  verified  plea;'  or  from  setting  up  a  want  or  failure 
of  consideration  except  by  a  special  plea." 

A  copv  of  document  sued  on  is  no  part  of  the  declaration,"  and 
a  variance  between  the  copy  and  the  original  itself,  offered  in 

1  2  Starr  &,  Curtis  1783;   Rev.  Stat.  "^  CMlds    v.    Fisher,    52    III.    205; 

(1893),  1073;  Rev.  Stat.  (1895),  1157.  McCarthy  v.  Neu,  91  III.  127. 

^Benjamin  v.   Delahay,  2  Scam.  ^  Wilson  v.  Kmg,  83  111.  232. 

574;    People  v.  Pearson,    1   Scam.  ^  Bogardus  v.  Trial,  1   Scam.  63; 

458.  Harlan  v.  Bostoell,  15  111.  56;  Franey 

'^People     V.    Pearson,     1     Scam.  v.  True,  26  111.  184;  Gage  v.  Lewis, 

458;    Childs  v.  Fisher,  52   111.   205;  68  111.  604;  Humphrey    v,  Phillips, 

McCarthy  v.  Neu,  91  111.  127;  Boyle  57  111.  132. 
v.  Carter,  24  lU.  49. 


COMMENCEMENT    OF   AN    ACTION.  29 

evidence,  is  no  ground  for  excluding  the  latter.'  If  a  suit  is 
on  a  judgment,  a  copy  of  the  record  must  be  filed  with  the 
declaration."  To  make  a  copy  of  the  instrument  sued  on  a 
part  of  the  declaration,  so  that  the  court  may  notice  it  for  any 
purpose,  the  defendant  must  crave  oyer.' 

Continuance. — The  Practice  Act  provides,that "  if  the  plaint- 
iff shall  not  file  his  declaration,  together  with  a  copy  of  the  in- 
strument of  writing  or  account  on  which  the  action  is  brought, 
in  case  the  same  be  brought  on  a  written  instrument  or  ac- 
count, ten  days  before  the  court  at  which  the  summons  or 
capias  is  made  returnable,  the  court  on  motion  of  the  defend- 
ant shall  continue  the  cause  at  the  cost  of  the  plaintiff."  * 

Under  this  provision  it  is  held  that  if  the  declaration  is  not 
filed  ten  days  before  the  term,  the  defendant  may  appear  and 
have  the  cause  continued  at  the  plaintiff's  costs;  but  if  the  de- 
fendant does  not  apply  for  such  continuance  the  cause  will  be 
continued  generally  and  the  costs  will  abide  the  result  of  the 
suit.* 

If  a  copy  of  the  instrument  or  account  sued  on  is  not  filed 
ten  days  before  the  term,  the  defendant  may  obtain  a  contin- 
uance; but  if  he  goes  to  trial  without  objection,®  or  pleads  to 
the  action,'  he  can  not  afterward  take  advantage  of  the  failure 
to  file  such  copy.  The  defendant  is  not  compelled  to  appear  at 
the  first  term  and  ask  for  a  continuance.' 

Where  common  counts  are  added  to  a  special  count,  a  failure 
to  file  a  copy  of  the  account  sued  on  under  the  common  counts 
will  be  a  ground  for  a  continuance,  unless  the  plaintiff  stipu- 

'  Archer  v.   Claflin,    31   III.   317;  76  111.  319;  Ins.  Co.  v.  Stayart,  79  III. 

Stratton   v.  Henderson,   26  111.  68;  259;  3Ioocly  v.    Thomas,  79  111.  274; 

Flax  Co.  V.  Beebe,  48  111.  138.  Wilson  v.  King,  83  111.  232;  Copper 

5  Jefferson  v.  Alexander,  84  111.  278.  Co.  v.  Barry,  56  111.  App.  587. 

^Sims  V.  Hugby,  Breese  413;  Peo-  ^  Collins  v.  Tuttle,  24  111.  623;  Jef- 

ple  V.  Pace,  57  111.  App.  674.  ferson  v.  Alexander,  84  111.  278. 

*  Rhv,  Stat.  (1893),  1073;  Rev.  Stat.  ^  Stratton  v.  Henderson,  26  111.  68; 

(1895),   1157;  2  Starr  &  Curtis,  1783,  Kimball  v.  Kent,  2  Scam.  217, 

Collins  V.  Tuttle,  24  111.  623;  Craft  v.  '  Grier  v.  Gibson,  36  111.  521;  Mc- 

Tumey,   25    111.    324;  Haivtlwrn   v.  Carthy  v.  Mooney,  41  111.  300. 

Cooper,  22  111.  22^; Hopkins  v.  Wood-  ^  Herring  v,  Quimby,  31  111,  153. 
it/ard,  75  111.  62;  Slade  v.  McClure, 


30  COMMENCEMENT   OF    AN   ACTION. 

lates  that  he  relies  only  on  the  instrument  sued  on,  or  enters 
a  nolle  prosequi  as  to  the  common  counts.' 

If  a  suit  is  brought  by  the  indorsee  of  a  negotiable  instru- 
ment it  is  not  necessary  to  file  copy  of  the  indorsement  to  pre- 
vent a  continuance.  The  instrument  sued  on  being  the  note 
or  bill  of  exchange,  and  not  the  indorsement.'^  So,  where  the 
defendants  are  sued  as  guarantors  of  a  promissory  note,  a  copy 
of  the  note,  showing  the  names  of  defendants  as  indorsers,  is  a 
sufficient  copy  of  the  instrument  sued  upon.  The  plaintiff  is 
authorized  to  fill  in  the  blank  over  the  names  at  the  trial." 

Dismissal  at  second  term,  where  no  declaration  is  filed. — 
If  no  declaration  is  filed  ten  days  before  the  second  term  of 
the  court,  the  defendant  will  be  entitled  to  a  judgment,  as  in  a 
case  of  non-suit.'  The  statute  is  construed  to  mean  the  next 
term  after  that  for  which  the  service  is  in  time.^ 

The  objection,  being  in  abatement  only,  and  not  in  the  bar  of 
the  suit,  must  be  made  before  any  steps  are  taken  to  defend  the 
suit  upon  its  merits.'  A  suit  should  not  be  dismissed  at  the 
second  term  for  failure  to  file  a  copy  of  account,  until  the 
plaintiff  has  been  ruled  to  file  the  same,  and  has  failed  to 
comply.'  A  plaintiff  has  the  same  time  after  notice  of  appear- 
ance in  which  to  file  his  declaration  as  after  service,  unless 
the  defendant  applies  for  a  special  rule  on  him  to  file  it  at  a 
particular  time.* 

Waiver  of. — Either  party  to  a  suit  has  the  right  to  have  the 
account  or  copy  of  the  instrument  upon  which  his  adversary 
relies  filed  with  his  pleadings.  But  this  right  may  be  Avaived; 
and  the  party  entitled  to  its  enforcement  must  not  so  act  as  to 
lead  the  other  to  suppose  it  has  been  waived  until  it  would 
subject  him  to  loss  or  inconvenience  to  have  it  enforced.' 

^Hawthorn  v.  Cooper,  23  111.  225;  344;  Herring  v.  Quimby,  31  111.  153; 

Love  V.  Fairfield,  5  Gilm.  303.  Waidner  v.  Pauly,   141  111.  442;  but 

"^  Franey    v.    True,     26    111.    185;  see  Hoioellx.  Ins.  Co.,  %%  l\\.  bO. 
Roberts  v.  Thompson,  28  111.  79.  « Beck  v.  I.  B.  Ass'n,  60  111.  App. 

3  Lee  V.  Mendel,  40  111.  359.  423;  Tider  v.  Poe,  48  111.  App.  158. 

*  Kimball  v.  Kent,   2  Scam.    217;  '  Kimball  v.  Kmt,  2  Scam.  217. 

McCamley  v.   Peek,  15  Bradw.   37;  s  jo/msoH  v.  iVoWe,  37  111.  App.  314. 

Waidner  \.  Paidey,U\l\\.  U2.  ^  Hoive    v.   Frazer,   117    111.    191; 

5  Wilkins  v.  English,  60  111.  App.  Fowler  v.  Meyers,  59  111.  App.  248. 


COMMENCEMENT    OF    AN    ACTION.  31 

With  plea  of  set-off. — A  plea  of  set-off  being  in  the  nature 
of  a  declaration  in  a  cross-action,  section  32  of  the  Practice 
Act,  requiring  the  defendant  to  file  with  his  plea  a  copy  of  the 
instrument  or  account  upon  which  he  relies,  is  governed  sub- 
stantially by  the  same  rules  and  principles  that  are  applied  to 
section  18  of  that  act,  requiring  the  plaintiff  to  file  a  copy  of 
the  instrument  or  account  sued  on.V 

Bill  of  particulars. — If  the  copy  of  the  account  filed  is  not 
sufficiently  specific,  the  defendant,  under  the  rules  of  practice, 
may  apply  to  the  court,  who  will  grant  a  rule  to  file  a  sufficient 
bill  of  particulars.^  The  object  of  requiring  the  plaintiff  to 
file  a  bill  of  particulars  is  to  inform  the  defendant  of  the  claim 
he  is  called  upon  to  defend  against,  and  its  effect  is  to  limit  and 
restrict  the  plaintiff,  on  the  trial,  to  proof  of  the  particular 
cause  or  causes  of  action  therein  mentioned.  It  is,  however, 
subject  to  amendment  as  any  other  pleading.^  As  a  general 
rule  the  recovery  will  be  confined  to  the  amount  specified  in 
the  bill  of  particulars.'  A  bill  of  particulars  can  not  be  re- 
quired in  action  ex  delicto." 

'  Howe  V.  Frazer,  117  111.  191.  *  Hess  v.  Dan'son,  149  llJ.  1^8;  Mor- 

2  McCarthy  v.  Mooney,  41  111.  300;      ton  v.  McClure,  22  III.  257. 

Howe  V.  Frazer,  117  111.  191.  ^  j^,  ji^  co.  v.  Smith,  10  Bradw.  359. 

3  Waidner  v.  Pauly,  141  111.  442; 
McDonald  v.  People,  126  111.  150. 


CHAPTER  III. 

DEFENSES  TO  AN  ACTION. 

I,    Motions  to  Quash,  or  to  Dismiss. 

II,    Pleas    to    the   Jurisdiction   and   in  Abatement,    Replication 
Thereto,  etc.,  with  Precedents. 

III.  Pleas  in  Bar,  Replications  Thereto,  etc.,  with.  Precedents. 

IV.  Demurrers,  with  Precedents. 

The  defendant  to  an  action  may  make  his  defense  in  various 
ways,  according  to  the  circumstances :  he  may  move  to  quash 
tJie  writ,  etc.,  or  to  dismiss  the  suit;  or  plead  to  the  jurisdiction 
of  the  court,  or  in  abatement  of  the  action;  or  demur  to  the  dec- 
laration; or  plead  in  har  of  the  action. 

The  observations  here  submitted,  on  the  subject  of  defenses, 
are  applicable  to  all  the  forms  of  action,  and  will  be  referred 
to  under  the  proper  heads. 

I.      MOTIONS  TO  quash,    OR  TO  DISMISS. 

How  made. — If  sufficient  ground  appears  from  the  papers 
or  record  it  is  not  always  necessary  (although  preferable)  that 
the  motion  be  in  writing — as,  where  a  suit  is  brought  on  an 
office  bond,  etc.,  without  filing  security  for  costs;  but  when  the 
motion  to  dismiss  is  on  the  ground  of  the  plaintiff's  being  a 
non-resident,  and  not  having  filed  security  for  costs,  then  such 
motion  must  be  based  on  an  affidavit  showing  the  non-residence 
of  the  plaintiff.  As  a  general  rule,  however,  motions  should 
be  made,  and  the  grounds  thereof  set  forth,  in  writing. 

When  must  be  made. — All  motions  of  a  dilatory  nature 
must  be  interposed  at  the  first  opportunity.  If  there  is  any 
delay  in  making  such  a  motion,  good  reason  for  the  delay 

(32) 


DEFENSES    TO   AN   ACTION. 


33 


must  be  shown  to  the  court.'  A  motion  of  this  kind  comes 
too  late  after  a  general  appearance  in  the  cause.^ 

As  to  what  is  a  general  appearance,  it  is  held  that  where  a 
defendant  has  made  several  successive  motions  in  a  cause, 
without  in  such  motions  limiting  his  appearance  to  the  special 
purposes  thereof,  he  has  appeared  generally;  ^  and  it  is  said 
that  if  a  defendant  appears  for  a  special  purpose,  such  as  to 
show  that  he  is  not  properl}^  in  court,  he  ought  to  restrict  his 
appearance  accordingly  in  his  motion,  as  otherwise  he  may  be 
held  to  have  appeared  generally.'  An  appearance  is  not  with- 
drawn by  the  withdrawing  of  a  plea  by  leave  of  the  court.* 
Where  there  was  defective  notice  by  publication  to  one  of  the 
defendants,  a  non-resident,  but  the  record  showed  that  the 
"  defendants  "  had  moved  to  quash  the  summons,  it  was  held 
that  there  was  such  an  appearance  by  the  non-resident  as  cured 
the  defect  in  the  notice.* 

When  writ,  etc.,  will  be  quashed,  or  suit  dismissed,  on 
motion. — If  the  writ  is  not  under  seal,' or  is  returnable  on 
my  other  day  than  the  first  day  of  the  term,  or  the  day  fixed 


'  Menard  v.  Marks,  1  Scam.  26; 
Edwards  v.  Helm,  4  Scam.  143;  Bines 
V.  Proctor,  4  Scam.  174;  Robertson 
V.  Com.,  5  Gilm.  559;  Trustees  v. 
Walters,  12  111.  154;  Randolph  v. 
Emerick,  13  111.  344;  3Ioss  v.  Flint, 
13  111.  570;  Miller  \.  Metzger.  16  III. 
390;  Frazure  v.  Zimmerly,  25  111. 
202;  Gihnore  v.  Nowland,  26  111.  200; 
ArcJierv.  Claflin,  31  111.  306;  Rob- 
erts V.  Falls,  32  111.  474;  Wayman  v. 
Crozier,  35  111.  156;  Clifford  v.  Town, 
35  111.  444;  Dunning  v.  Dunning,  37 
111.  306;  Yocum  v.  Town,  39  111,  220; 
Ruckinau  v.  Ahcood,  40  111.  128; 
People  V.  Cloud,  50  111.  439;  Coiirson 
V.  Bronming,  78  111.  208;  Papineau 
V.  Belgarde,  81  111.  61;  Greer  v. 
Young,  120  111.  184. 

^  Beecher  v.  James,  2  Scam.  462: 
R.  R.  Co.  V.  Keei),  22  111.  9;  Abbott 
V.  Semple,  25  111.  107;  Dart  v.  Her- 
cules, 34  111.  395;  Miles  v.  Goodwin, 
3 


35  111.  53;  Phelps  v.  Reeder,  39  111. 
172;  Price  v.  R.  R.  Co.,  40  111.  44; 
Roberts  v.  Formhalls,  46  III.  66;  Mc- 
Batn  V.  Peojile,  50  111.  503;  Ins.  Co. 
V.  Broach,  31  111.  App.  502. 

^Abbott  V.  Semple,  25  111.  107; 
Flake  v.  Carson,  33  111.  5\S\'Miles  v. 
Goodwin,  35  111.  53;  Baldwin  v.  Mc- 
Clelland, 152  111.  42. 

*  Miles  V.  Gcodivin,  35  111.  53; 
Ogle  V.  Coffey,  1  Scam.  238;  Schoon- 
hoven  v.  Gott,  20  111.  46:  McXab  v. 
Bennett,  66  111.  157. 

^  Dart  V.  Hercules,  34  111.  395. 

«  Sullivan  v.  Sullivan,  42  III,  315. 
See  Farber  v.  Iron  Co.,  50  111,  App, 
503, 

'Ogle  V,  Coffey,  1  Scam.  238; 
Easton  v.  Altum,  1  Scam.  250;  An- 
glin  V.  Nott,  1  Scam.  395;  Garland 
V.  Britton,  12  111.  232;  Williams  v. 
Vanmetre,  19  111.  293. 


34  DEFENSES    TO    AN    ACTION. 

by  law,'  or  does  not  show  with  certainty  in  the  court  of  what 
county  the  defendant  is  required  to  appear/  or  varies  mate- 
rially from  the  declaration,  etc.''  (but  not,  it  seems,  when  the 
variance  is  in  the  name  of  the  defendant),^  such  writ  will  be 
quashed  on  motion.'  Where  the  defect  does  not  appear  upon 
the  face  of  the  writ,  the  same  matters  may  be  pleaded  in  abate- 
ment/ A  writ  of  capias  ad  respondendum^  attachment  or 
replevin  may  also  be  quashed  on  motion  for  insufficiency  of 
the  affidavit  on  which  such  writ  is  based,  or  defect  in  the  writ 
itself;  but  in  attachment  the  affidavit  and  writ,'  and  in  re- 
plevin (in  the  discretion  of  the  court)  the  affidavit '  may  in 
Illinois  be  amended.  Also,  in  the  case  of  an  attachment 
(and  probably  now  of  a  capias),  the  Avrit  may  be  quashed,  or 
suit  dismissed,  for  want  of  the  bond  required  by  law,"  unless 
the  plaintiff  will  furnish  the  requisite  bond;  and  if  the  decla- 
ration is  not  filed  on  the  return  of  the  attachment,  or  at  the 
term  to  which  the  same  is  returnable,  the  defendant  may,  in 
the  discretion  of  the  court,  have  the  suit  dismissed.'" 

II.       PLEAS  TO  THE  JURISDICTION,  AND  IN  ABATEMENT. 

Order  of  pleading. — "  The  law  has  prescribed  and  settled 
the  order  of  pleading  which  the  defendant  is  to  pursue,  viz. : 

'  Gould's  PI.  267;  Rattan  v.  Stone,  (1895).  177;  1  Starr    &    Curtis    322; 

2    Scam.   541;   Hildreth  v.    Hough,  Eussell  w  Martin,  2  Scum.  492. 

20111.  331;  Elee  v.  Wait,  28  111.  70.  » Frink  v.   Flanagan,  1  Gilm.  35; 

^Orendorffv.  Stanberry,  20111.  89;  Camjibell  v.   Head,  13  111.  122;  AIc- 

Gin  V.  Hobbit,  23  111.  473.  Claiighreyv.  Cratzenberg,  39111. 117. 

^Sclioonhoven  V.  Gott,  20  111.46;  »Rev.    Stat.    (1893),  169;  1  Starr  & 

Windettv.  Hamilton,  52  lU.  180.  Curtis  311;    Rev.    Stat.    (1895),    173; 

*  Reaughv.  McConnell,  36  111.  373;  Lawrence  v.  Yeatvian,  2  Scam.  15; 
but  see  Schoonhoven  v.  Gott,  20  111,  Singleton  v.  Wafford,  3  Scam.  577; 
46;  1  Chit.  PI.  391.  Love  v.  Fairfield,  5  Gilm.  303. 

*  Gould's  PI.  267,  251;  Greer  v.  "Rev.  Stat.  (1893),  172;  Rev.  Stat. 
Yoimg,  120  111.  184.  (1895)   176;    1   Starr   &   Curtis,    320; 

« Greer  v.  Young,  120  III.  184.  Stoddard  v.  Miller,  29  lU.  291. 

'  Rev.  Stat.  (1893),  173;  Rev.  Stat. 


DEFENSES    TO    AN    ACTION.  35 

1st.     To  the  jurisdiction  of  the  court. 
2dli/.     To  the  disability,  etc.,  of  the  jjerson : 
\  1st.     Of  the  plaintiff ; 
)  2dly.     Of  the  defendant. 
Sdly.     To  the  count,  or  declaration. 
4thly.     To  the  ivrit : 

f  1st.     To  the  form  of  the  writ.: 

1st.     Matter  apparent  on  the  face  of  it 
2dly.     Matter  dehors; 
Sdly.     To  the  action  of  the  writ. 
Sthly.     To  the  axition  itself,  in  bar  thereof. 


I      JLSl.         J.U 

\        I 


This,  it  is  said,  is  the  natural  order  of  pleading,  because 
each  subsequent  plea  admits  that  there  is  no  foundation  for 
the  former — as  when  the  defendant  pleads  to  the  person  of  the 
plaintiff,  he  admits  the  jurisdiction  of  the  court,"  etc,  "  If 
this  order  of  pleading  be  inverted,  the  defendant  will  be  pre- 
cluded from  pleading  any  matter  prior  in  point  of  order." ' 

Pleas  in  abatement, — A  plea  in  abatement  is  defined  to  be 
a  plea  that,  without  disputing  the  justness  of  the  plaintiff's 
claim,  objects  to  the  place,  mode  or  term  of  asserting  it,  and 
requires  that  therefore,  and^ro  /iac  vlvi,  judgment  be  given 
for  the  defendant,  leaving  it  open  to  renew  the  suit  in  another 
place  or  form,  or  at  another  time/  The  office  of  a  plea  in 
abatement  is  to  set  up  matter  which  merely  defeats  the  pres- 
ent proceeding  but  does  not  show  that  the  plaintiff  is  forever 
concluded,  and  it  must  give  the  plaintiff  a  better  writ.^  All  dil- 
atory  pleas  are  sometimes  called  pleas  in  afxitet)ient,  as  contra- 
distinguished from  pleas  to  actions  or  in  bar.  This,  how- 
ever, is  never  proper  when  strict  accuracy  is  required.* 

Requisites  of  pleas  in  abatement. — Fleas  of  this  charac- 
ter are  required  to  be  full,  certain  and  formal  in  every  partic- 
ular. Not  being  favored  by  courts,  because  of  their  dilatory 
nature,  they  are  not  aided  by  any  intendment,"  and  can  not 

'  1  Chit.  PI.  379.  ^Tidd'sPr.  639;    1  Chit.  PI.    395; 

2 1  Chit.  PI.  441 ;  Comyn's  Digest,  1,  Gould's  PI.  75,  76;  HoUoway  v.  Free- 

11;    Pitts  Mfg.    Co.  v.  Com.   Nat.  man,  22  111.  197;    Fowler  v.  Arnold, 

Bank,  121  111.  582.  25  111.  284;  Diblee  v.  Davison,  25  111! 

M  Chit.    Fl.  44Q  et  seq. ;    Gregg  v.  486;  Parsons  v.    Case,   45   111.   296; 

Summer,  21  111.  App.  110.  Nixon  v.  Ins.  Co.,  47  111.  444;  Buckles 

*  Gould's  PI.,  Sec.  35.  v.  Harlan,  54  HI.  361;  Humphrey  v. 


3G 


DEFENSES    TO    AN    ACTION. 


be  altered  or  amended.'  Whether  a  pica  is  in  abatement  or 
in  bar  is  to  be  determined,  not  from  the  subject-matter  of  the 
plea,  but  from  its  conclusion.  The  relief  sought  by  the  prayer 
of  the  plea  determines  its  character.' 

At  Avliat  time  dilatory  pleas  must  be  pleaded.— All  pleas 
in  abatement  (under  which  general  name  are  here  included 
pleas  to  the  jurisdiction  and  all  other  dilatory  pleas),  and  ob- 
jections of  that  nature,  must  be  interposed  at  the  first  oppor- 
tunity, in  any  court,  whether  a  court  of  record  or  not.'  It  is 
too  late  to  plead  in  abatement  after  demurring  to  the  decla- 
ration,' or  pleading  in  bar  of  the  action,'  or  joining  in  error; ' 
or  to  plead  to  the  jurisdiction  after  a  motion  seeking  the  same 
object  of  the  plea,'  or  after  the  defendant  has  appeared,  and 
moved  for  a  continuance.*  Nor  can  a  plea  in  abatement  be 
pleaded  after  a  similar  plea  has  been  stricken  from  the  files." 
But  it  must  be  understood  that  the  defendant  is  not  bound  to 
plead  at  all  until  the  plaintiff  is  in  a  situation  to  compel  him 
to  plead.'" 


Phillips,  57111. 132;  Feaslerv.  Schrie- 

ver,  68  111.  323;  U.  N.  Bank  v.  F.  N. 

Bank,  90  lU.  56;  Ryan  v.  Lander,  89 

111.  554;  Hill  v.  Harding,  93  111.  77; 

Garrick  v.  Chamberlain,  97  111.  620; 

Pitts  V.  Bank,  121  111.  586. 

1 1  Chit.  PI.  405;   Gould's  PI.  236; 
'  Holloimy  v.  Freeman,  22  111.  197; 

Cook  V.  Yarwood,  41  111.  115;  Drake 

V.  Drake,  83  111.  526;  Pitts  Mfg.  Co. 

V.  Com.  Nat.  Bank,  121  111.  582. 
n  Tidd's  Pr.  637;  Jenkins  v.  Pep- 

ron,  2  Jolins.  Cas.  312;  Pitts.  Mfg. 
Co.  V.  Com.  Nat.  Bank,  121  111.  582. 
^Conley  v.  Good,  Breese  135; 
Pearce  v.  Swan,  1  Scam.  266;  Greer 
T.  WJieeler,  1  Scam.  554;  Bines  v. 
Proctor,  4  Scam.  174;  Duncan  v. 
Charles,  4  Scam.  561;  Wilson  v.  Net- 
tleton,  12  111.  61 ;  Randolph  v.  Emer- 
ick,  13  111.  344;  Moss  v.  Flint,  13111. 
570-  Thorpe  v.  Starr,  17  111.  199; 
Stum2)sv.  Kelly,  22111. 140;  Holloimy 
V.  Freeman,  22  111.  197;  Gilmore  v. 
Nowland,  26  111.  200;  Roberts  y.  Fahs, 


32  111.  474;  Wayman  v.  Crozier,  35 
111.  156;  Clifford  v.  Eagle,  35111.  444; 
Messeroy  v.  Beckivith,  41  111.  452; 
Archibald  v.  Argall,  53  111.  307;  R. 
R.  Co.  V.  Williams,  77  111.  354;  Fond- 
ville  V.  Monroe,  74  111.  126;  U.  N. 
Bank  v.  Nat.  Bank,  90111.  56;  Fisher 
V.  Cook,  125  111.  280. 

*  Randolph  v.  Enierick,  13  111. 
344;  Fergersonv.  Rawlings,  23  111.  69. 

5  Walker  v.  Welch,  14  111.  277; 
Gilmore  v.  Nowland,  26  111.  200; 
Allen  V.  Watt,  69  111.  655;  Lindsay  v. 
Stout,  59  111.  491;  Fisher  v.  Cook,  125 
111.  280;  Dodge  v.  People,  113  111.  495. 

®  Robinson  V .  Magarity,  28  111.  423; 
Oliver  v.  Cochran,  19  Bradw.  236. 

1  Archer  v.  Claflin,  31  111.  306. 

»  Roberts  v.  Thomj)son,  28  111.  79; 
U.  N.  Bank  v.  Nat.  Bank,  90  111.  56. 

^Cook  V.  Yarwood,  41  111.  115;  1 
Starr  &  Curtis,  182;  Rev.  Stat.  (1893), 
102;  Rev.  Stat.  (1895),  102. 

^^Shepard  v.  Ogden,  2  Scam.  257; 
Archer  v.  Claflin,  31  Dl.  306. 


DEFENSES    TO    AN   ACTION.  37 

Statutory,  etc.,  relating  to  pleas  in  abatement. — Section 
4  of  the  statute  in  relation  to  abatement,  declares  that  "  when 
a  defendant  in  an  action  upon  a  contract,  express  or  implied, 
pleads  in  abatement  the  non-joinder  of  any  other  person  as  de- 
fendant, the  court  shall,  at  any  time  before  issue  joined  on  such 
plea,  allow  the  plaintiff  to  amend  his  declaration,  by  inserting 
therein  the  name  of  the  person  named  in  such  plea,  and  declar- 
ing against  him  jointly  with  the  original  defendant." ' 

Premature  action. — A  defense  that  a  suit  was  begun  before 
the  claim  was  due,  should  be  set  up  by  plea  in  abatement,  and 
not  by  plea  in  bar.''  Thus,  if  an  action  is  brought  in  violation 
of  contract  to  extend  time  of  payment,  it  has  been  held,  that 
is  a  defense  in  abatement  only,  and  can  not  be  set  up  after 
pleading  in  bar.' 

Tariance. — A  variance  between  a  summons  and  the  declara- 
tion may  be  taken  advantage  of  by  a  plea  in  abatement;^  and 
can  only  be  taken  advantage  of  by  such  plea,  or  by  motion  to 
quash," 

Amendments  to  cure  matters  of  abatement. — By  section 
3  of  the  abatement  act,  it  is  provided  that  "  No  action  or 
proceeding  shall  be  defeated  by  plea  in  abatement,  if  the  defect 
found  is  capable  of  amendment,  and  is  amended  on  terms  pre- 
scribed by  the  court." " 

A  variance  betAveen  summons  and  declaration,^  misjoinder, 
non-joinder  and  misnomer  can  be  cured  by  amendment.  "  No 
action,  proceeding  or  complaint,  in  law  or  equity,  commenced 
by  or  against  a  feme  sole,  either  alone  or  with  others,  shall 
abate  on  account  of  her  intermarriage  before  final  judgment, 

'  1  Starr  &  Curtis  181;  Rev.  Stat.  Chit.  PI.  389;  Gould  PI.  235;  Allen  v. 

(1893),   101;  Rev.    Stat.    (1895),    101;  IT'aff,  69  III,  655. 

Damron  v.  Siveetser,  16  Bradw.  339.  ''Prince  v.  Lamb,  Breese  378;  Rust 

^Palmer  v.  Gardiner,  77  111.  143;  v.  Fort,  Breese  331;    Weld  v.  Hulh- 

contra,  McCoy  v,  Bahcock,  1  Bradw.  bard,  11  111.  573;  Thorp  v.  Starr,  17 

414;  Life  Ass'n  v.   Hagler,  23  111.  III.  199;    Carpenter  v.  Hoyt,  17  111. 

App.  457.  529;  Schoonhoven  v.  Gott,  20  III.  46; 

^Cxdver   v.    Johnson,   90    III.   91;  Windett  v.  Hamilton,  52  111.  180. 

Archibald  v.  Argall,  53  III.  307;  Pitts  « 1  Starr  &  Curtis'  181;  Rev.  Stat. 

V.  Com,.  Nat.  Bk.,  21  III.  App.  483.  (1893),  101;  Rev.  Stat.  (1895),  101. 

*  Simons  v.  Waldroji,  70  III.  281;  '  Wildai/  v.   Wright,   71  III.    374; 

Fonville  v.   Monroe,   74  III.  126;  1  Hesli})  v.  Peters,  S  Scam.  Ao. 


38  DEFENSES    TO   AN   ACTION. 

but  she  may  continue  to  prosecute  or  defend  the  same  in  like 
manner  as  if  she  were  sole."  '  The  statute  provides  that  "a 
married  woman  ma3%  in  all  cases,  sue  and  be  sued  without 
joining  her  husband  with  her,  to  the  same  extent  as  if  she 
were  unmarried." " 

Death  of  sole  plaintiff  or  flefeiitlant. — By  the  common  law, 
the  death  of  a  sole  plaintiff  or  sole  defendant,  pendente  lite, 
abates  the  suit;  and  if  one  of  several  plaintiffs  die  pending  the 
suit,  it  will  in  most  cases  abate;  but  if  one  of  several  defend- 
ants die,  it  is  generally  no  cause  of  abatement,  but  the  plaint- 
iff may  suggest  the  death  upon  the  record,  and  proceed  in  the 
same  suit  against  the  survivors,  if  the  cause  of  action  is  such 
as  would  survive  against  them,  as  is  almost  universally  the 
case.'  But  by  statute,  however,  in  England,  and  generally  in 
the  states  of  the  union,  the  common  law  has  been  modified  in 
respect  to  the  abatement  of  suits  by  the  death  of  parties,  and 
provision  has  been  made  for  the  substitution  of  the  represen- 
tatives of  such  deceased  parties,  and  in  all  cases  where  the  cause 
of  action  survives. 

Death  of  sole  plaintiff. — By  section  10  of  the  abatement 
act,  it  is  provided  that  "  where  there  is  but  one  plaintiff, 
petitioner  or  complainant  in  an  action,  proceeding  or  com- 
plaint, in  law  or  equity,  and  he  shall  die  before  final  judgment 
or  decree,  such  action,  proceeding  or  complaint  shall  not  on 
that  account  abate,  if  the  cause  of  action  survive  to  the  heir, 
devisee,  executor  or  administrator  of  such  decedent,  but  any 
of  such  to  whom  the  cause  of  action  shall  survive,  may  by 
suggesting  such  death  upon  the  record,  be  substituted  as 
plaintiff,  petitioner  or  complainant,  and  prosecute  the  same  as 
in  other  cases."  *     The  suggestion  of  death,  made  w^ithout  ob- 

•  1  Starr  &  Curtis,  182;  Rev.  Stat.  111.  122:  R.  R.  Co.  v.  Button,  68  111. 

(1893),  102;  Rev.  Stat.  (1895),  102.  409;  Bassett  v.   Bassett,  20  Bradw. 

'Rev.  Stat.  (1895),  855;  Rev.  Stat.  543;    Bloomington    v.    Annett,    16 

(1893),  806;  1  Starr  &  Curtis,   1269;  Bradw.  199. 

Wingv.  Goodman,  75  III.  159;  An-  ^Qould's  PI.  246,  248. 

derson  v.  Friend,  71  111.  475;  Martin  *  1  Starr  &  Curtis,  182;  Rev.  Stat. 

V.  Rohson,   65  111.   129;    Chicago  v.  (1893;,  102;    Rev.     Stat.   (1895),  102. 

Speer,  66  111.  154;  Hennie  v.   Vogel,  See   Bunker  v.   Green,  48  111.  243; 

66  111.  401;  R.  R.  Co.  v.  Dickson,  67  Murphy   v.  McGrath,  79  lU.    594; 


DEFENSES   TO    AN    ACTION.  39 

jection  from  the  adverse  party,  and  an  order  allowing  sub- 
stitution of  names,  is  prima  facie  proof,  for  the  purposes  of 
the  case,  of  the  death  of  the  original  plaintiff.' 

An  order  substituting  administrator  of  sole  plaintiff  is  nec- 
essary.'' But  entering  judgment  in  favor  of  a  dead  person, 
without  first  reviving  suit  in  the  name  of  his  representatives, 
is  not  such  an  error  as  requires  a  reversal  of  a  judgment.' 
When  the  representatives  of  a  deceased  party  are  substituted 
in  his  stead,  the  declaration  need  not  be  amended  by  the  in- 
sertion of  their  names.* 

Death  of  sole  defendant. — Section  11  of  the  statute  in  rela- 
tion to  abatement,  provides  that  "  when  there  is  but  one  de- 
fendant in  an  action,  proceeding  or  complaint,  in  law  or 
equity,  and  he  dies  before  final  judgment  or  decree,  such 
action,  proceeding  or  complaint  shall  not  on  that  account 
abate,  if  it  might  be  originally  prosecuted  against  the  heir, 
devisee,  executor  or  administrator  of  such  defendant;  but  the 
plaintiff,  petitioner  or  complainant  may  suggest  such  death  on 
the  record,  and  shall,  by  order  of  the  court,  have  summons 
against  such  person  or  legal  representative,  requiring  him  to 
appear  and  defend  the  action,  proceeding  or  complaint,  after 
which  it  may  proceed  as  if  it  had  been  originally  commenced 
against  him.- '  ^ 

The  representatives  of  a  deceased  defendant  will  not  be  al- 
lowed to  suggest  the  defendant's  death,  unless  he  submits  him- 
self to  the  jurisdiction  of  the  court.'  Section  11  applies  to 
appeals  and  Avrits  of  error,'  and  to  attachment  suits.' 

Several  parties — Death  of  part. — Where  there  are  several 
plaintiffs  or  defendants,  and  any  of  them  die  before  final  judg- 

Katzv.  Moessinger,  110  111.  372;  Coal  s  i  gtarr  &  Curtis,  183;  Rev.  Stat. 

V.  Long,  91  111.  617;  Leamon  v.  Mc-  (1893),  102;    Rev.    Stat.    (1895),   102; 

Cuhhin,  82  111.  263,  Sharpev.  Morgan,  144  111.  382;  Dow 

'  Stebbens    v.  Duncan,  108  U.   S.  v.  Blake,  148  111.  76. 

32.  0  Life  Ins.  v.  Fasseft,  103  111.  315. 

2  Thorp  V.  Starr,  17  111.  199;  MilH-  See  Danforth  v.  Danforth,  111  111, 

ken  V.  Marlin,  66  111.  13,  236. 

^Bunker  v.    Green,   48  111.    243;  •>  jDzrerset/ v.  S^??n77j,  9  Bradw.  437, 

Murphy  v.  McGrath,  79  111.  594.  •  8  Davis  v.  Shapleigh,  19  111.  386. 

*  Hozs  V.  Van  Alstyne,  20  111.  202* 


40  DEFENSES   TO    AN    ACTION. 

irient,  the  action  shall  not  abate,  but  the  death  may  be  sug- 
gested and  the  cause  proceed  as  to  the  survivors.'  It  would  not 
be  proper  to  join  administrator  of  deceased  defendant  with  a 
surviving  defendant,'*  nor  the  administrator  of  a  deceased 
plaintiff  with  the  surviving  partner.^ 

Death  of  all  on  one  side. — In  case  all  the  plaintiffs  or  all 
the  defendants  die,  the  cause  may  be  prosecuted  or  defended 
by  or  against  the  heir,  devisee  or  administrator,  to  or  against 
whom  the  cause  survives,  etc.* 

Pleas  in  abatement — When  to  he  verified. — The  first  sec- 
tion of  the  abatement  act  provides  :  "  That  no  plea  in  abate- 
ment, other  than  a  plea  to  the  jurisdiction  of  the  court,  or  when 
the  matters  relied  upon  to  establish  the  truth  thereof  appear 
of  record,  shall  be  admitted  unless  the  same  is  verified  by  the 
affidavit  of  the  person  offering  the  same,  or  of  some  other  per- 
son for  him."  ^  Every  pleading  Avhich  sets  up  matter  in  abate- 
ment which  does  not  appear  of  record  to  be  true,  must  be 
verified  by  affidavit;  and  if  not  so  verified  should  be  stricken 
from  the  files  on  motion.'  Where  a  summons  has  been  issued, 
but  not  delivered  to  the  sheriff  to  serve,  the  suit  does  not 
thereby  abate.^ 

Judgment  upon  a  plea  in  abatement. — In  ordinary  actions 
at  law,  in  courts  of  record,  the  judgment  on  the  finding  of  the 
issues  for  the  plaintiff,  upon  a  plea  in  abatement,  is  interlocu- 
tory or  final,  according  to  the  nature  of  the  action.  If  the  ac- 
tion be  for  damages  in  assumpsit  or  in  tort,  it  is  interlocutory; 
but  if  it  be  in  debt  for  a  sum  certain,  or  for  a  specific  recovery 
of  land  or  goods,  it  is  final.^     If  the  judgment  is  for  the  plaint- 

'  1  Starr  &  Curtis,  183;  Rev.  Stat.  ^  Life  Ass'n  v.  Fassett,  102  111.  315; 

(1893),  102;    Rev.    Stat.     (1895),  103;  Ryan  v.  Lander,  8Q  III.  5M;  King y, 

Steele  v.  Thatcher,  79  111.  400.  Haines,   23  111.   340;    Cook  v.   Var- 

^  Etch  V.   Sievers,  73  111.194;  see  ^rood,  41  111.  115;  McNah  v.  Bennett, 

Riclieson  v.  Ryan,  15  111.  13;    Stoet-  66111.  157;  31ou7it  v.  Scholes,  120111. 

zell  V.  Fullerton,  44  111.  108.  394;  Richer  v.  Schofield,  28  111.  App. 

.  3  Betton  V.  Fish,  44  111.  83.  33. 

*  1  Starr  &  Curtis,  184;  Rev.  Stat.  ">  Schroeder  v.  7ns.  Co.,  104  111.  71. 

(1893),  102;  Rev.  Stat.  (1895),  102.  » Steele  v.  Ry.  Co.,  20  Bradw.  366; 

n  Starr  &  Curtis,  177;  Rev.  Stat.  2  TidcFs  Pr.  740;  Gould's  PI.  (4tli  Ed.) 

(1893)  101;  Rev.  Stat.  (1895)  101.  Chap.  5,  Sec.  159. 


defensp:s  to  an  action.  41 

iff  on  demurrer  to  the  plea,  the  judgment  is  only  interlocutory^ 
quod  respondeat  ouster.' 

The  judgment  for  the  defendant  on  a  plea  in  abatement, 
whether  on  an  issue  of  fact  or  in  la^Y,  is  that  the  ^yrit  be 
quashed;"  or  if  a  temporary  disability  or  privilege  is  pleaded, 
that  ih.Q plaint  remained  without  day,  until,  etc.^ 

Plea  ill  abatement  by  corporation.  —A  plea  by  a  corpora- 
tion aggregate,  which  is  incapable  of  personal  appearance, 
must  purport  to  be  by  attorney.'  A  corporation  may  put  in 
issue  the  fact  of  the  service  of  process  upon  it  by  plea  in  abate- 
ment, and  then  contradict  the  officer's  return,  which  is  only 
lyrima facie  evidence  of  the  truth  of  the  facts  therein  recited.^ 
In  the  case  of  The  Protection  Life  Insurance  Co.  v.  Palmer^  81 
111.  88,  it  was  held  that  the  question  whether  a  summons  has 
been  properly  served  can  not  be  raised  by  a  plea  in  abatement; 
but  can  only  be  properly  considered  on  motion  to  quash  the 
service  and  return.  The  same  rule  was  adopted  in  Greer  v. 
Youngs,  120  III.  184;  but  the  supreme  court  in  Union  National 
Banlc  v.  First  National  Bank,  90  111.  56,  pronounce  the  rule 
laid  down  in  The  Protectioji  Life  Ins.  Co.  v.  Palmer,  as  ohiter 
dicta  merely;  and  that  there  was  no  design  in  that  case  to 
overrule  the  previous  decisions. 


Term,  18—. 


No.  1.    Plea  to  the  Jurisdiction. 
In  the Court. 

C.  D.  ) 

ats.    y  Assumpsit. 

A.  B.  )      And  the  said  C.  D.,  m  his  own  pei-son,  comes  and  defends,  etc., 

and  says,  that  before  and  at  the  time  of  the  commencement  of  the  said  action 

of  the  said  A.  B.,  he,  tlie  said  C.  D.,  was,  and  from  thence  hitherto  has 

been,  and  still  is,  residing  in  the  county  of ,  in  the  said  State  of  Illinois, 

'  1  Chit.  PI.  405;    Gould's  PI.  277;  16  111.  306;  Cushman  v.  Savage,  20 

Delahay  v.  Clement,  3  Scam.    201;  111.  330;  Spaulding  v.  Lowe,  58  111. 

Bradshaw  v.  Moorehouse,    1   Gilm.  96. 

395:  Weldv.   Hubbard,  11  111.  573;  ^  1  Chitty's  PI.  405. 

AtMnson  v.   Bank,   5    Blackf.    85;  *Chitty's  PL,  Vol.  1,  p.  551;  Ma-on 

Haight  v.  Holley,  3  Wend.  263.  v.  Ins.  Co.,  47  111.  444;  M.s^jeZ  v.  R. 

•^Gould's   PI.    277;    ItcKiiistey  v.  R.  Co.,  i^i  111  311:  Kankakee  Drain. 

Pennoyer,  1  Scam.  319;  Motherell  v.  Dist.  v.  Comm.,  29  111.  App.  86. 

Beaver,  2  Gilm.  69;  Eddy  v.  Brady,  ^  Bank  v.  Bank,  90  111.  56. 


42  DEFENSES    TO   AN    ACTION. 

and  not  in  the  said  county  of ;  and  that  he,  the  said  C.  D. ,  was  not  found 

or  served  with  process  In  the  said  action  in  the  said  county  of ,  but  was 

found  and  served  with  process  in  the  said  action  in  the  said  county  of ; 

and  this  he  is  readj'^  to  verify;  wherefore  he  prays  judgment  if  tlie  court 
here  will  take  cognizance  of  the  action  aforesaid. 

C.  D. 
E.  F.,  Counsel. 

The  second  section  of  the  Illinois  Practice  Act  of  1872  pro- 
vides that  "  it  shall  not  be  lawful  for  any  plaintiff  to  sue  any 
defendant  out  of  the  county  where  the  latter  resides  or  may 
be  found,  except  in  local  actions,  and  except  that  in  every 
species  of  personal  actions,  in  law,  where  there  is  more  than 
one  defendant,  the  plaintiff  commencing  his  action  where  either 
of  them  resides  may  have  his  writ  or  writs  issued,  directed  to 
any  county  or  counties  where  the  other  defendants,  or  either 
of  them,  may  be  found :  Provided,  that  if  a  verdict  shall  not 
be  found,  or  judgment  rendered,  against  the  defendant  or  de- 
fendants resident  in  the  county  where  the  action  is  commenced, 
judgment  shall  not  be  rendered  against  those  defendants  who 
do  not  reside  in  the  count}^,  unless  they  appear  and  defend  the 
action."  ' 

Unless  a  defendant,  when  sued  in  a  foreign  county,  insists 
upon  his  privilege  in  apt  time,  b}''  a  plea  to  the  jurisdiction,  it 
will  be  presumed  that  he  has  waived  his  right  to  be  sued  in 
his  own  county.*  The  matter  is  not  pleadable  in  bar,^  nor  can 
advantage  be  taken  thereof  by  a  motion  to  dismiss,*  or  on  de- 
murrer, or  writ  of  error." 

Superior  courts  of  general  jurisdiction  (and  such  are  the 
circuit  courts  in  Illinois),'  are  presumed  to  be  in  the  proper 
exercise  thereof,  until  the  contrary  is  shown;  and  pleas  to 
their  jurisdiction  must  set  forth  facts  showing  a  want  of 
jurisdiction,  and  must  be  certain  in  every  particular.^ 

'Rev.   Stat.  (1893),  1071;  Starr    &  Inh.  Co.  v.  Buckles,  49  111.  482;  see 

Curtis,  1773;  Rev.  Stat.  (1895),  1155;  Safforcl  v.  Ins.  Co.,  88  111.  296;  Mc- 

Fiink  V.  Ironmonger,  76  111.  506;  R.  CuUoch  v.  Ellis,  28  111.  App.  439. 

R.  Co.  V.  Williams,  77  111.  354.  "Hardy  v.  Adams,  48  111.  533. 

*  Holloway  v.  Freeman,  22  111.  197;  ^  Kenney  v.  Gi^eer,  13  111.  432. 
Allen  v.  Watt,  69  111.  655;  Stark  v.  •>  Kenney  v.  Greer,  13  111.  432;  Dib- 
Ratcliff,  111  111.  75.  lee  v.  Davison,  25  111.  486;  Aird  v. 

3  Waterman  v.  Tuttle,  18  111.  292.      Haijnie,    36  111.   174;    Jns.    Co.    v. 

*  Holloway  v.  Freeman,  22  111.  197;      Buckles,  49  111.  482. 


DEFENSES   TO   AN   ACTION.  43 

A  plea  showing  that  a  defendant  has  been  sued  out  of  his 
county,  on  process  sent  to  his  county,  is  not  strictly  a 
plea  in  abatement,  but  a  meritorious  one  to  secure  a  substan- 
tial right,  and  if  defective  in  form,  is  amendable.'  Pleas  to 
the  jurisdiction  must  be  pleaded  in  person,  and  not  by  at- 
torney,'' except  when  pleaded  b}^  a  corporation.' 

In  a  case  where  one  of  two  defendants  signed  a  plea  of  this 
kind  by  the  initials  of  his  given  name,  it  was  held  insufficient;* 
though  it  would  not  seem  to  be  necessary  that  the  defendant 
should  sign  the  plea  at  all,  but  merely  that  it  should  appear  to 
be  pleaded  in  person.  In  Illinois,  as  we  have  seen,  these  pleas 
are  not  required  to  be  verified  by  affidavit."  They  should  con- 
clude by  praying  judgment  "if  the  court  will  take  cognizance," 
etc.,  and  not  "  that  the  writ  be  quashed."  * 

It  is  not  necessary,  it  would  seem,  in  Illinois,  to  point  out 
in  the  plea  some  other  court  in  which  the  defendant  ought  to 
be  sued,  since  the  courts  must  take  judicial  notice  of  the  law, 
which  establishes  certain  tribunals  in  every  county.  See 
further,  as  to  pleas  to  the  jurisdiction,  especiall}^  of  inferior 
courts,  1  Chit.  PI.  383-380,  and  Gould's  PL  216-223. 

No.  2.     Plea  of  viisnomer  of  defendant,  in  christian  name. 

In  the Court. 

Term,  18—. 

C.  D. ,  sued  by  the  name  of  E.  D. ,  ] 

ats.  [•  Assumpsit. 

A.  B.  )      And  C.  D.  (against  whom  the  said 

A.  D.  has  sued  out  his  said  writ  by  the  name  of  E.  D.),  in  his  own  per- 
son comes  and  says,  that  he  is  named  and  called  C.  D.,  and  by  that  name 
and  that  surname  has  always  hitherto  been  named  and  called;  without 
this  that  he,  the  said  C.  D.,  now  is,  or  ever  was,  named  or  called  by  the 
name  of  E.,  as  by  the  said  writ  is  supposed.  And  this  he,  the  said  C.  D.,  is 
ready  to  verify;  wherefore  he  prays  judgment  of  the  said  writ,  and  that 
the  same  may  be  quashed,  etc. 


G.  H.,  Counsel. 


CD. 


^Safford  v.  Ins.   Co.,  88  HI.  298;  n  Starr  &  Curtis  177;  Rev.  Stat. 

Drake  v.  Drake,  83111.  52G.  (1893),  101;  Rev.  Stat.  (1895).  101. 

'1  Chit.  PI.  380;  Gould's  PI.  222;  « 1  Chit.  PI.  380;  Gould's  PI.  222. 

R.  R.  Co.  V.  Keep,  22  111.  9.  Drake  v.  Drake,  83  lU.  526;  see  Wal- 

^Nispel  V.  R.  R.  Co.,  64  111.  311;  Jace  v.  Cox,  71  111.  548;  Safford  v. 

Kankakee  v.  Comm.,  29  111.  App.  86.  Ins.  Co.,  88  111.  296. 

*  Holloway  v.  Freeman,  22  111.  197. 


44  DEFENSES    TO    AN    ACTION. 

In  the Covirt. 

C.  D.,  sued  by  the  name  of  E.  D., ) 

ats.  >  Assumpsit. 

A.  B.  )      C.  D,  the  defendant  in   this  cause, 

makes  oath  and  says,  that  the  plea  hereunto  annexed  is  true  in  substance 
and  fact. 

C.  D. 
Subscribed  and  sworn,  etc. 

The  affidavit  must  be  positive;'  it  is  not  sufficient  to  say  "  to 
the  best  of  the  knowledge  and  belief"  of  the  affiant."  It  is 
said  that  the  affidavit  must  be  entitled  in  the  cause;  but  in 
Illinois  it  is  held  that  this  is  unnecessary  where  the  affidavit  is 
written  on  the  same  piece  of  paper  with  the  plea,  and  refers  to 
it/  as  is  usually  the  case. 

The  above  form  of  plea  can  be  readily  adapted  to  the  case 
of  a  misnomer  of  the  defendant  as  to  his  surname.  For  a  plea 
of  misnomer  of  the  plaintiff,  see  3  Chit.  PI.  903. 

It  appears  advisable,  it  is  said,  to  plead  misnomer  of  the  de- 
fendant in  person,  and  that  coverture  of  the  defendant  should 
not  be  pleaded  by  attorney;*  but  it  is  presumed  that  all  pleas, 
except  those  to  the  jurisdiction,  may  be  pleaded  by  attorney. 

Misnomer  in  describing  one  of  two  defendants  can  not  be 
pleaded  by  the  other."  If  the  right  name  was  used  in  the  writ, 
laut  the  defendant  is  miscalled  in  the  declaration,  it  seems  the 
latter  may  be  amended."  A  defendant  sued  by  his  given  name 
alone  must  plead  the  misnomer  in  abatement;  and  if  it  is  not 
so  pleaded  the  objection  is  waived.' 

A  county  which  has  adopted  township  organization  can,  in 
Illinois,  only  be  sued  by  the  name  of  the  board  of  supervisors, 
and,  if  sued  otherwise,  it  is  not  necessary  to  plead  the  matter 
in  abatement.  The  capacity  of  a  county  to  be  sued  is  onh^ 
given  by  special  statute,  and  the  statute  must  be  followed." 

1  1  Chit.  PI.  402,  White,    71    111.    287;    Goodkind    v. 

2A7«gv.  fiame.s,23Ill.  340.  Bartlett,  153  111.  419;  Peiin   Co.   v. 

3  Cook  V.  Yancood,  41  111.  115.  Sloan,   125  111.    72;    see  Feasler  v. 

4  3  Chit.  PI.  899n.,  90 lo.  Schriever,  68  111.  322. 

6  1  Chit.  PI.  391;  Gould's  PI.    240.  «  Rock  Island  v.  Steele,  31  111.  543; 

«  Schoonhoven  v.  Gott,  20  111.  46.  Schuyler  Co.  v.  Mercer  Co.,  4  Gilni. 

•'Hammond  v.  People,  32  111.  446;  20. 
Pond  V.  Ennis,  69  111.  341 ;  Scott  v. 


DEFENSES   TO   AN   ACTION.  45 

But  generally  a  corporation  defendant  can  not  take  advantage 
of  a  misnomer  except  by  plea  in  abatement; '  and  misnomer  of 
a  corporation  plaintiff  is  also  to  be  pleaded  in  abatement.^  If 
the  misstatement  of  a  name,  in  suing  on  a  written  contract, 
causes  a  variance,  advantage  may  be  taken  of  it  under  the  gen- 
eral issue/  A  defendant  can  not  plead  in  abatement  because 
of  an  alias  dictus  added  to  liis  name/  An  initial  letter  between 
the  christian  name  and  surname  is  no  part  of  the  name,  and  the 
omission  of  it  does  not  cause  a  misnomer  or  variance/ 

If  the  name  by  which  a  party  sues  or  is  sued  is  the  same  in 
sound  with  his  true  name,  there  is  no  misnomer.  In  the  fol- 
lowing instances  it  was  held  that  the  rule  of  idem  sonans 
applied :  Sinclair,  for  St.  Clair'  °  Samuel  Ileadley,  for  Sam- 
uel Headly,  Jr.;  ''  Little,  for  Lytle;  '  McDonald,  for  McDon- 
nelV  and  Burnstein,  for  Barnstein}"  But  Schoonover  and 
Schoonhoven  are  not  the  same;  "  and  it  will  not  be  presumed, 
without  averment,  that  Bart  is  an  abbreviation  of  Barthol- 
omew.^'^ 

Where  the  name  appears  to  be  a  foreign  one,  and  there  is 
simply  a  variance  of  a  letter  which,  according  to  the  pro- 
nunciation of  the  language  to  which  the  name  belongs,  does 
not  vary  the  sound,  it  is  not  a  misnomer — as  Petris,  for  Petrie.'^ 
Respecting  foreign  names,  it  is  said  that  courts  should  be  slow 
to  pronounce  that  a  variance,  unless  obviously  so,  which  may 
be  only  a  misspelling  or  mispronunciation  of  the  name/* 

The  plaintiif  may  traverse  the  plea  of  misnomer,  or  reply 

1  Gilbert  v.  Bank,  5  Mass.  97.  «  Lytle  v.  People,  47  111.  433. 

*  1  Chit.  PI.  391;  Hoereth  v.  Mill  ^  McDonald  v.  People,  47  111.  533. 
Co.,  30  111.  151;  R.  R.  Co.  v.  Hein-  *"  Springer  v.  Hutchinson,  59  111. 
rich,  57  111.  App.  899.  App.  80. 

34  Term  R.,  611;  Chit,  on  Bills,  6th  "  Sdioonlioven  v.  Gott,  30  111.  46; 

Ed.,  353;  1  Chit.  PI.,  391.  see  also  Gonzalia  v.  Bartelsman,  143 

*  Reid  V.  Lord,  4  Johns.  118.  111.  634;  Giiertin  v.  Mombleu,  144  111. 
s  Thompson  v.   Lee,  21    111.   242;  32. 

Miller  v.  People,  39  111.  457;  Bletch  '^  Cvrtiss  v.  3farrs,  39  111.  508. 

V.  Johnson,  40    111.    116;  Tucker  v.  ^'^  Petrie  v.    Woodworth,   3  Caine 

People,  123111.  588;  Langdon  v.  Peo-  319. 
pie,  133  111.  395.  '•»  Chiniquy  v.    Cath.  Bishop,    41 

«  Rivard  v.  Gardner,  39  111.  125.  111.  148. 

•>  Headley  v.  Shaw,  39  111.  354. 


46  DEFENSES   TO    AN    ACTION. 

an  estoppel/  or  that  the  defendant  is  known  as  well  by  the  one 
name  as  the  other.^  It  seems  that  where  a  misnomer  was  truly 
pleaded,  the  plaintiff  might  amend  his  declaration  at  common 
law  and  the  suit  might  proceed.^ 

Where  the  real  party  in  interest,  and  the  one  intended  to  be 
sued,  is  actually  served  with  process  in  the  cause,  even  though 
under  a  wrong  name,  he  must  take  advantage  of  the  misnomer 
by  plea  in  abatement  in  such  suit.  If  he  does  not,  he  will  be 
concluded  or  decree  rendered  the  same  as  if  sued  in  his  true 
name.* 

No.  3.    Replication  to  No.  2.    Defendant  known  as  well  by  one  name  as 

the  other. 

In  the Court. 

Term,  18—. 

A.B.      ) 

vs.  >  Assumpsit. 
E.  D.  )  And  tlie  plaintiff  says,  that  the  said  writ,  by  reason  of  any- 
thing by  the  defendant  in  his  plea  above  alleged,  ought  not  to  be  quashed, 
(*)  because  he  says  that  the  defendant,  long  before  and  at  the  time  of  the 
issuing  of  the  said  writ,  was,  and  still  is,  called  and  known  as  well  by  the 
name  of  E.  D.  as  by  the  name  of  C.  D. :  And  this  the  plaintiff  prays  may 
be  inquired  of  by  the  country,  etc. 

G.  H.,  Attorney  for  Plaintiff. 

In  a  case  where  the  plaintiff  sued  as  S.  S.  Farrington,  and 
the  defendant  pleaded  that  the  plaintiff's  name  was  Samuel  S. 
Farrington,  a  replication  that  he  was  known  as  well,  etb.,  was 
held  good.^ 

No.  4.    Plea  of  non-joinder  of  party  as  defendant. 

In  the Court. 

Term,  18—. 

CD.) 
ats.    >  Assumpsit. 

A.  B.  )  And  the  said  C.  D.,  by  E.  F.,  his  attorney,  comes  and  defends, 
etc.,  and  prays  judgment  of  the  said  writ,  because  he  says  that  the  several 
supposed  promises  in  the  said  declaration  mentioned,  if  any  such  were 
made,  were,  and  each  of  them  was,  made  (*)  jointly  with  oneE.  F.,  who 
is  still  living,  and  not  by  the  said  C.  D.  alone:     And  this  he,  the  said  C.  D., 

'  3  Chit.  PI.  1143.  =  1  Chit.  PI.  402. 

2  3  Chit.  PI.  1143;  Gould's  PI.  242;  ^Pennsylvania   Co.  y.   Sloan,  125 

Schoonhoven    v.    Gott,    20  111.    46;  111.  72. 
Lucas  V.  Farrington,  21  111.  31.  *  Lucas  v.  Farrington,  21  El.  31. 


DEFENSES    TO   AN   ACTION.  47 

is  ready  to  verify;  wherefore,  inasmuch  as  the  said  E.  F.  is  not  named  in 
the  said  writ  together  with  the  said  C.  D.,  he,  the  said  C.  D.,  prays  judg- 
ment of  the  said  writ,  and  tliat  the  same  may  be  quashed,  etc. 

E.  F.,  Attorney  for  Defendant, 
(Add  affidavit,  as  ante,  No.  2.) 

In  deht  on  simple  contract  the  form  may  be,  "  that  the  sev- 
eral supposed  causes  of  action  in  the  said  declaration  men- 
tioned, if  any  such  accrued,  and  each  of  them,  and  every  part 
thereof,  accrued  against  the  said  C.  D.  jointly  with  one  E.  F., 
who  is  still  living,  and  not  against  the  said  C.  I),  alone,"  etc. 

In  debt  on  lond,  the  plea  in  abatement  of  non-joinder  craves 
oyer  of  the  bond,  and  avers  that  the  party  omitted  sealed  and 
delivered  the  deed,  and  that  he  is  still  living.' 

No.  5.    Replication  to  No.  4,  denying  that  promises  were  made  jointly,  etc. 

(As  in  No.  3,  ante,  to  the  asterisk:)  because  he  says,  that  the  said  several 
promises  were  not  made  by  tlie  defendant  jointly  with  the  said  E.  F,,  in 
manner  and  form  as  the  defendant  has  above  in  his  said  plea  alleged:  And 
tliis  the  plaintiff  prays  may  be  inquired  of  by  the  country,  etc. 

J.  M.,  Attorney  for  Plaintiff. 

The  plaintiff  may  deny  the  plea,  as  above,  or  he  may  reply 
that  the  person  not  joined  as  defendant  was  dead  at  the  time 
of  the«commencement  of  the  suit,"  or  was  an  infant,  or  a  mar- 
ried woman ;^  or  if  there  is  in  fact  a  debt  due  to  the  plaintiff 
from  the  defendant  and  a  third  person  jointly,  a  new  assign- 
ment seems  proper,  and  sometimes  necessary." 

"When  a  defendant  in  an  action  upon  a  contract,  express  or 
implied,  pleads  in  abatement  the  non-joinder  of  any  other  per- 
son as  defendant,  the  court  shall  at  any  time  before  issue 
joined  on  such  plea,  allow  the  plaintiff  to  amend  his  declara- 
tion by  inserting  therein  the  name  of  the  person  named  in 
such  plea,  and  declaring  against  him  jointly  with  the  orio-inal 
defendant."  * 

'  3  Chit.  PI.  901.  *  2  Swan's  Pr.  6.50rt. 

5  Cummings  v.  People,  50  111.  132;  «  Rev.  Stat.  (1898\  101;  see  Smith 

Dement  v.  Rokker,  126  111.  174.  t.  Harris,  12  111.  402. 
2  1  Chit.  PI.  35. 


48  DEFENSES   TO   AN    ACTION. 

No.  6.    Plea  of  non-joinder  of  party  as  plaintiff. 

{As  in  No.  4,  ante,  to  the  asterisk:)  to  the  said  A.  B.  and  one  E.  F., 
(who  is  still  living,)  jointly,  and  not  to  the  said  A.  B.  alone:  And  this  he, 
the  said  C.  D.,  is  ready  to  verify;  wherefore,  inasmuch  as  the  said  E.  F.  is 
not  named  in  the  said  writ  together  with  the  said  A.  B.,  he,  tin  said  C.  D.. 
prays  judgment  of  the  said  writ,  and  that  the  same  may  be  quashed,  etc. 

G.  H. ,  Attorney  for  Defendant. 

{Add  affidavit,  as  ante,  No.  2.) 

The  plea  in  abatement  of  non-joinder  mnst  aver  that  the 

party  omitted  is  still  living;'  and  if   the  defendant  pleads  in 

abatement  the  non-joinder  of   a  party,  and  it  turns  out  that 

.  there  are  other  joint  contractors  not  named  in  the  plea,  the 

defendant  will  not  succeed  thereon.'' 

The  non-joinder  of  a  party  who  ought  to  be  made  co-plaint- 
iffs in  actions  on  contracts,  will  in  general  be  ground  of  non- 
suit and  need  not,  though  it  may,  be  pleaded  in  abatement; ' 
but  in  the  case  of  executors  and  others  suing  in  right  of  rep- 
resentation, the  omission  can  only  be  pleaded  in  abatement." 
If  it  appears  from  the  plaintiff's  own  pleadings  that  there  are 
other  persons  who  ought  to  be,  but  are  not,  made  plaintiffs, 
(or,  in  an  action  on  a  specialt}'-,  if  this  is  made  to  appear,  by 
craving  oyer,)  the  defendant  may  avail  himself  of  the  omis- 
sion on  demurrer,  or  motion  in  arrest,  or  on  error.*  In  actions 
ex  delicto,  however,  the  non-joinder  of  a  person  as  plaintiff 
must  be  pleaded  in  abatement;  otherwise  no  advantage  can  be 
taken  of  it  except  in  mitigation  of  damages."  But  in  Illinois, 
in  debt,  on  the  statute,  for  cutting  trees,  etc.,  all  the  owners 
of  the  land  must  join,  and  the  defendant  is  not  required  to  plead 
a  non-joinder  of  them  in  abatement.'' 

With  regard  to  defendants.,  the  omission  of  a  joint  contractor 
must  be  pleaded  in  abatement.'    If,  however,  it  expressly  ap- 

>  1  Chit.  PI.  392.  «  Gould's  PI.    257-258;  1  Chit.  Pi. 

2 1  Chit.  PI.  33.  398;    Edicards  v.   Hill,   11   111.    22; 

3  1  Chit.  PI.  8-393.  Johnson  v.  Richardson,  17  111.  302. 

4  1  Chit.   PI.  393-393;  Gould's  PI.  ''  Edwards  v.  Hill,  11  111.  33. 

257.  8  Chit.  PI.  33,  393;  Gould's  PI.  255; 

5  1  Chit.  PI.  7,  8;  Gould's  PI.  257;  Lurton  v.  Gilliam,  1  Scam.  577; 
Damronv.  Siveetser.lQlW.  App.33d;  Thompson  v.  Strain,  16  111.  369; 
Dement  v.  Rokker,  126  111.  174.  Page  v.  Brant,  18  111.  37;  Cummings 


DEFENSES   TO   AN    ACTION.  49 

pears  on  the  face  of  some  pleading  on  the  part  of  the  plaintiff 
that  the  person  omitted  is  still  living,  as  well  as  that  he  jointly 
contracted,  the  defendant  may  demur,  or  move  in  arrest,  or 
sustain  a  writ  of  error.'  If  there  be  a  legal  excuse  for  not 
joining  a  partner,  as,  if  he  be  dead,  the  plaintiff  must  allege 
it.'  In  actions  for  toHs,  no  advantage  can  in  general  be  taken 
of  a  non-joinder  of  persons  as  defendants'^ 

No.  7,    Misjoinder  of  defendant — Plea  by  one  defendant. 

In  the Court. 

Term,  18—. 

C.  D.  and  E.  F.      ) 

ats.  j-  Assumpsit. 

A.  B.  )      And  the  said  E.  F.,  by  G.  H.,  his  attorney,  comes  and 

defends,  etc.,  and  prays  judgment  of  the  said  writ,  because  he  says  that  the 
several  supposed  promises  in  the  said  declaration  mentioned,  if  any  such 
were  made,  were,  and  each  of  them  was,  made  by  the  said  C.  D.  alone,  and 
not  by  the  said  E.  F.  jointly  with  the  said  C.  D. :  And  this  he,  the  said  E.  F., 
is  ready  to  verify;  wherefore  he  prays  judgment  of  the  said  writ,  and  that 
the  same  may  be  quashed,  etc. 

G.  H.,  Attorney  for  E.  F. 
{Add  affidavit,  as  ante.  No.  2.) 

As  to  a  misjoinder  of  plaintiffs  or  defendants,  in  actions  on 
contracts,  at  common  law  advantage  ma}'^  be  taken  of  the  mis- 
take as  well  under  the  general  issue  as  by  plea  in  abatement;* 
and  this  is  the  law  in  Illinois,  as  regsiixls plaint ij^s."  In  respect 
to  defendants,  the  statute  now  in  force  in  Illinois  provides,  that 
"  in  actions  upon  contracts,  express  or  implied,  against  two  or 
more  defendants,  as  partners  or  joint  obligors  or  payors,  lohethef 
so  alleged  or  not,  proof  of  the  joint  liability  or  partnership  of 
the  defendants,  or  their  christian  or  surnames,  shall  not,  in  the 
first  instance,  be  required  to  entitle  the  plaintiff  to  judgment, 

V.    People,   50    111.    132;   Pearce    v.  Vieths  v.  Skinner,  47  111.  App.  325; 

Pearee,  67  111.  207;  Boss  v.  Allen,  67  See  R.A.Co.v.  Middlecoft,  150  111.  27. 

111.  317;  Dement  v.  Rokker,  126  111.  "Gould's  PI.  225,260;  as  to  non-suit, 

189.  1  Chit.  PI.  8,  34;  Zuel  v.  Boiven,  78 

'  Chit.  PI.  32;  Thompson\.  Strain,  111.  234. 

16  111.  369;    see  Gould's  PI.  260;  De-  ^Rev.  Stat.  (1893),  1075;  Rev.  Stat. 

ment  v.  Rokker,  126  111.  189.  (1895),  1159;    1  Starr  &  Curtis  1799; 

M  Chit.    PI.    14,  *15;    Dement  v.  Snell  v.  De  Land.  ^Zl\\.'62i;  Murphy 

Rokker,  126  111.  189.  v.  Orr,  32  111.  489;    Dement  v.  Rok- 

8  Chit.  PI.  75,  393;  Gould's  PI.  261;  ker,  126  111.  189. 
4 


50  DEFENSES    TO    AN    ACTION. 

unless  such  proof  shall  be  rendered  necessary  by  pleading  in 
abatement,  or  unless  the  defendant  shall  file  a  plea  in  bar  deny- 
ing the  partnership  or  joint  Uabillty  or  the  execution  of  the  in- 
strument sued  upon,  verified  by  affidavit."  '  This  enactment 
differs,  in  the  respects  indicated  by  the  words  in  italics,  from 
the  former  law,  under  which  all  the  cases  on  this  subject  here- 
tofore adjudged  were  decided.^  As  therefore  the  partnership 
or  joint  liability  of  the  defendants  can  now  be  put  in  issue  by 
a  plea  in  bar,  and  as  there  is  a  difficulty  in  pleading  a  misjoinder 
of  defendants  in  abatement — since,  though  a  party  may  well  by 
his  sworn  plea  deny  that  he  made  the  alleged  promises  jointly 
with  another,  it  may  often  be  impossible  for  him  to  say  on 
oath  who  did  make  them,  and  thus  to  give  the  plaintiff  a  better 
■\vrit — it  is  presumed  that  such  misjoinder  will  seldom  be  pleaded 
in  abatement. 

In  actions  for  torts,  advantage  of  a  misjoinder  of  plaintiffs 
may  also  be  taken  either  by  plea  in  abatement  or  under  the 
general  issue; '  but  if  several  persons  are  sued  for  a  tort  com- 
mitted by  one  of  them  only,  no  advantage  can  be  taken  of  it, 
as  a  misjoinder,  in  any  way.* 

No.  8.     Plea  of  another  action  pending. 

In  the Court, 

Term,  A.  D.  18—. 

C.  D.       ) 
ats         !-  In  an  action  of . 

A.  B.  )  And  the  defendant  C.  D.,  by  E.  F.,  his  attorney,  comes 
and  defends  the  wrong  and  injury,  when,  etc.,  and  prays  judgment  of  the 
said  writ  {or  declaration);  because  lie  says,  that  before  the  issuing  of  said 
writ,  to  wit,  on,  etc.,  in  the  same  court  (or  other  court,  describing  it  by 
proper  title),  the  plaintilT  impleaded  the  defendant,  and  issued  his  said 
writ,  and  filed  his  declaration  against  him  in  a  plea  of  trespass  on  the  case 
on  promises,  upon  the  same  identical  promises  and  undertakings  in  the  said 
declaration  in  the  present  suit  mentioned,  as  by  the  record  and  proceedings 
thereof,  remaining  in  the  said  court,  more  fully  appears;  and  the  defendant 

'Rev.  Stat.    (1893),    1075;  Zuel  v.  ^ Gould's  PI.   258;  see  1  Chit.   PI. 

Bowen,  78  111.  234;  Rev.  Stat.  (1895),  55;  Murphy  \.  Orr,  32  111.  489. 

1159;  2  Starr  &  Curtis  1800.  "1  Chit.  PI.  74;    Gould's   PL  261; 

^Stevenson  v.  Famsworth,  2  Gilm.  Baker  v.  R.  R.  Co.,  42  111.  73;  Wins- 
lib;  Wai^en  v.  Chambers,  12  111.  124;  low  v.  Newlan,  45  111.  145. 
Kelleher  v.  Tisdale,  23  111.  405;  War- 
ren V.  Ball,  3T1U.  76. 


DEFENSES   TO    AN    ACTION.  51 

further  says,  that  the  parties  to  this  and  the  said  former  suit  are  the  same, 
and  not  other  or  different  persons;  and  that  the  said  former  suit  so  brought 
and  prosecuted  against  him,  the  defendant,  by  the  plaintiff  as  aforesaid,  is 
still  depending  in  the  said  court;  and  this  the  defendant  is  ready  to  verify; 
wherefore  he  prays  judgment  of  the  saidwr  t  (o?-  declaration)  in  this  suit, 
and  that  the  same  may  be  quashed. 

G.  H.,  Attorney  for  Defendant. 
(Add  affidavit.) 

No.  9.     Replication  to  No.  8.     Nul  tie!  record. 

As  in  No.  3,  ante,  to  the  asterisk:)  because  he  says,  that  there  is  not  any 

record  of    the  said  supposed  former  suit  remaining  in  the  said court 

of   the    said  county  of ,  in  manner  and  form  as  the  said  C.  D.  has 

above  in  his  said  plea  alleged:  And  this  the  plaintiff  is  ready  to  verify, 
when,  where  and  in  such  manner  as  the  court  here  shall  order,  etc. 

L.  M.,  Attorney  for  Plaintiff. 

The  plaintiff  may  reply  nnl  tiel  record.,  as  above;  or,  if  there 
is  in  truth  another  suit  pending  between  the  same  parties  for 
a  cause  of  action  similar  to  that  mentioned  in  the  declaration, 
it  would  seem  proper  that  the  plaintiff  should  new  assign — as 
in  the  following  form — that  he  is  suing  for  a  different  cause  of 
action/ 

No.  9a.    Replication  to  No.  S.    New  assignment,  that  suit  is  for  different 

causes  of  action. 

(Venue  and  title  of  cause.) 

And  the  plaintiff  as  to  the  said  plea  of  the  defendant,  by  him above 

pleaded,  says  precludi  non,  because  he  says  that  the  said  several  promises 
and  undertakings  in  the  said  declaration  mentioned,  are  not,  nor  are  any 
or  either  of  them,  any  of,  or  any  one  of  the  same  identical  promises  and 
undertakings,  as  those  or  any  of  those  in  the  said  plea  mentioned,  and  for 
and  in  respect  whereof  the  said  supposed  action  now  pending  in  the  said 
plea  mentioned  was  instituted,  in  manner  and  form  as  the  defendant  has 
in  his  said  plea  alleged;  and  this  the  plaintiff  prays  may  be  inquired  of  by 
the  country,  etc. 

E.  F.,  Att'y  for  Pl'ff. 

It  is  an  ancient  rule  of  the  common  law  that  a  man  shall 
not  be  twice  vexed  for  one  and  the  same  cause,  and  the  pend- 
ency of  a  former  suit  in  the  same  jurisdiction  between  the 
same  parties  for  the  same  cause  of   action  and  relief  may  be 

•  2  Swan's  Pr.  652a. 


52  DEFENSES   TO   AN    ACTION. 

pleaded  in  abatement  of  a  second  suit.'  The  pendency  of  a 
proceeding  under  the  mechanic's  lien  law  of  Illinois/  or  of  a 
prior  suit  bv  attachment  can  not  be  pleaded  in  abatement  of  a 
suit  in  personam  for  the  same  debt,  unless,  in  the  latter  case, 
the  plea  shows  that  the  defendant  was  personally  a  party  to  the 
suit; '  nor  can  the  pendency  of  a  suit  in  one  state  be  pleaded  in 
abatement  of  a  second  action  for  the  same  matter  in  another 
state.*  In  England,  the  pendency  of  a  prior  action  in  an  infe- 
rior court  can  not  be  pleaded  in  abatement  of  an  action  brought 
in  one  of  the  superior  courts.' 

A  writ  of  error,  operating  as  a  supersedeas,  is  pleadable  in 
abatement  of  another  action,"  but  not  if  the  writ  Avas  sued  out 
after  the  commencement  of  such  other  action.'  When  a  sec- 
ond suit  is  commenced  after  a  writ  of  error,  operating  as  a 
supersedeas,  has  been  sued  out,  the  court  in  which  the  second 
action  is  pending  wnll,  on  application,  stay  the  proceedings 
until  the  determination  of  the  writ  of  error.' 

A  subsequent  suit  may  be  abated  by  an  allegation  of  the 
pendency  of  a  prior  suit,  but  the  reverse  of  the  proposition 
does  not  hold  in  personal  actions.*  To  entitle  a  defendant  to 
plead  another  action  pending,  it  is  not  always  necessary  that 
both  actions  should  be  between  the  same  parties;   it  is  some- 

1  Hatch  V.  Spofford,  22  Conn.  485;  10  Pick.  470;  Brmnie  v.  Joy,  9  Johns. 
Wales  V.  Jones,  1  Mich.  254;  Bond  221;  il/ooj-e  v.  Spiegel,  143  Mass.  413. 
V.  White,  24  Kan.  45;  Gamslyy  v.  '  1  Chit.  PI.  392;  Gould's  PI.  266. 
Ray,  52  N.  H.  513;  Wentivorthv.  ^  Hailmanx.  Bvckmaster,  3  Gilm. 
Bamum,  10  Johns.  (N.  Y.)238;  Rog-  498;  Bird  v.  Caritat,  2  Johns.  342; 
ers  V.  Hoskins,  15  Ga.  270;  Thomas  Peynn  v.  Edwards,  1  Ld.  Raym.  47; 
V.  Freelon,  17  Vt.  138;  Branigan  v.  Merritt  v.  Richey,  100  Ind.  416. 
Rose  3  Gilm.  123.  '^  McJilton  v.  Love,  13  111.  486;  Ren- 

2  Delehay  v.  Clement,  3  Scam.  201;  ner  v.  Marshall,  1  Wheat.  215. 
Tlieihnan  v.  Carr,  75  III.  385.  *  Hailman  v.  Biickmaster,  3  Gilm. 

^ Branigan  V.  Rose,  3  Gilm.    123;  498;  1  Tidd's  Prac.  530;  1  Stra.  419; 

Winthroj)  v.  Carleton,  8  Mass.  456;  1  Wils.  120. 

Morton  v.  Webb,  7  Vt.  123.  ^  Renner   v.  Marshall,  1  Wheat. 

^McJilton  Y.Love,  13  111.486;    Al-  215;  Bird  v.  Caritat,  2  Johns.    342; 

ten  V.  Watt,  69  111.   655;    Greer  v.  Callahan  \.  R.  R.  Co.,  61  Mich.  15; 

Young,  120111.  184;  Williams  v.  Ayr-  Wood  v.  Lake,  13  Wis.  84;   Rizer  v. 

ault,  31  Barb.  364;  Newell  v.  Newton,  Gilpatrick,  16  Kans.  564;  Blumen- 

thal  V.  Taylor,  44  lU.  App.  139. 


DEFENSES   TO   AN   ACTION.  53 

times  enough  if  the  subject-matter  is  the  same.'  A  suit  to 
recov^er  the  price  of  goods  sold,  and  another  to  recover  the 
goods  on  the  ground  of  fraud  on  the  part  of  the  vendee,  can 
not  be  maintained  at  the  same  time.' 

The  plea  of  another  action  pending  must  aver  that  it  is  still 
pending  at  the  time  of  the  plea  pleaded."  There  are  decisions 
to  the  contrary;  *  but  this  is  the  rule  in  Illinois,  and  it  is  said 
to  rest  on  the  better  reasoning  and  authority."  The  defend- 
ant may  demur  when  it  appears  on  the  face  of  the  papers  that 
there  is  another  action  for  the  same  cause  pending  between  the 
same  parties."  The  plaintiff  can  not,  after  a  plea  of  a  prior 
action  pending,  avoid  the  effect  of  the  plea  by  discontinuing 
the  prior  action.' 

Proof  by  the  defendant  of  the  issuing  of  a  writ  for  the  same 
cause  of  action  shows  j^rima  facie  the  pendency  of  another 
suit,  and  shifts  the  burden  of  proof  on  the  plaintiff."  The  in- 
justice of  entertaining  two  suits  against  the  same  party  at  the 
same  time,  for  the  same  cause  of  action,  is  so  glaring  as  to 
give  to  a  plea  of  another  action  pending  a  more  favorable 
position  than  one  merely  dilatory;  still  the  pleader  must  not 
nsglect  any  of  the  essential  requirements  of  the  law." 

III.       PLEAS    IN    BAR. 

A  plea  in  bar  is  one  that  impugns  the  right  of  action 
altoirether;  it  is  a  substantial  and  conclusive  answer  to  the 
action.  It  must  either  deny  all  or  some  material  part  of  the 
averments  of  fact  in  the  declaration,  or,  admitting  them  to  be 
true,    allege  new  facts  which  obviate  and  repel  their  legal 

^McConnell  v.  Stettenius,  2  Gi\m.  259;   Johnson  v.    Johnson,  114    111. 

707;  Gould's  PI.  263,  265.  611;    Garrick    v.     Chamberlain,    97 

2  Seligman  v.  Kalkman,  8  Cal.  206.  111.  620. 

3  3  Chit.  PI.  905;  Ross  v.  Neshit,  2  ^  Moore  v.  Sheppard,  1  Met.  (Ky.), 
Gilm.  252;  Bancroft  v.  Eastman,  2  97;  Foster  Fed.  Prac,  Sec.  108. 
Gilni.  259;  Johnson  v.  Johnson, 114:  "'1  Chit.    PI.    394;    Commonw.    v. 
111.  611.  Churchill,  5  Mass.  174;  but  see  Mar- 

*  Commonw.  v.  Churchill,  5  Mass.  ston  v.  Dayton,  1  Johns.  397;  Averill 

174;  Frogg  v.    Long,   3  Dana    157;  v.  Patterson,  6  Seld.  500. 

Parker  v.  Colcord,  2N.  H.  36;  Pros-  ^Foider  v.  Bijrd,  1  Hemp.  213. 

ser  V.  Chapman,  29  Conn.  515.  ^Buckles  v.  Harlan,  54  111.  361. 

'■Bancroft  v.  Eastman,  2  Gilman 


54  DEFENSES    TO   AN    ACTION. 

effect.     Pleas  in  bar  are  divided  into  'picas  hy  loay  of  traverse, 
or  denial,  and  j^l^ds  hy  way  of  confession  and  avoidance. 

The  following  rules  laid  down  by  Stephen,  in  his  work  on 
pleading,  may  be  useful  in  this  place: 

1.  Every  pleading  must  he  an   answer  to  the  whole  of  what 
is  adversely  alleged.^ 

2.  Pleadings  must  not  he  doiihle.^ 

■    3.    In  general,  whatever  is  alleged  in  pleading  must  he  alleged 
with  certainty.^ 

4.  Jt  is  not  necessary  to  allege   that  which  is  merely  matter 
of  evidence.^ 

5.  It  is  not  necessary  to  state  Tnatters  of  which  the  court  takes 
notice  ex  officio."    Wor  matters  which  would  come  more  properly 

from  the  other  side.^ 

6.  It  is  not  necessary  to  allege  circumstances  necessarily  im- 
plied^    Nor  what  the  law  will  presume!" 

7.  Pleading  must  not  he  insensihle  or  repugnant! 

8.  Pleading  must  nothe  argumentative!" 

9.  Pleading  must  not  he  amhiguous  or  douhtful  in  meaning^ 
and  when  two  different  meanings  present  theinselves,  that  con- 

'  Andrews'  Stephen's  PI.,  Sec.  133;  « ibid.  Sec.  188;  Romer  v.  Conter, 

Goodrich  v.   Reynolds,   31  111.   490;  53  Minn.  171. 

Dickerson   v.    Hendryx,   88   111.  68;  '  Ibid.  Sec.  189;  il/wZcoZm  v.  0'i?et7Zt/, 

Hopkins  v.  Medley,  97  111.  403.  89  N.  Y.  136;   Jones  v.  Andrews,  10 

8  Ibid.    Sec.  143;  1    Chit.  PI.    456;  Wall.  337. 

Ry.  Co.  V.  Ingraham,    131  111.  659;  « Ibid.  Sec.  190;   Henke  v.   E.    E. 

Kipp  V,  Bell,  86  111.    577;  R.  R.  Co.  Ass'ii,    100    Cal.    439;   Campbell  v. 

V.  Magee,  60  111.  539.  Cross,  39  Ind.  155;  Ballon  v.  Cleve- 

3  Ibid.  Sec.  184;  Com.  Dig.  PI.,  C.  Zand,  35  Ohio  St,  319. 

23,  17;  Harpham  v.  Haynes,  30  111.  ^  Ibid.  Sec.  197;  Robinson  v.  Rice, 

404.  20  Mo.  339;   Cronk  v.   Cole,  10  Ind. 

■•Ibid.    Sec.    136;  Church  v.    Gil-  485;  McKyrijig  v.  Bull,  211.  D.Smith 

man,  15  "Wend.  656;  Fidlerv.  Dela-  (N.  Y.)  — ;    Raymond  v.   People,    9 

van,  20  Wend.  58;  Clark  v.  Linebar-  111.  App.  344;  Barber  v.  Summers,  5 

ger,  44  Ind.  233;  Grun  v.  Palmer,  15  Blackf.   339;    Hewett  v.  Brown,  21 

Cal.  414;  Hyatt  v.  McMahon,  25  Barb,  Minn.  163. 

457.  1"  Ibid.  Sec.  201 ;  Mishner  v.  Gran- 

5  Ibid,  Sec,   187;  Secrist  v.  Petty,  ger,  4  Gilm.  78;  Spurck  x.  Forsyth, 

109  111.  108;  Oliver  v.  State,  4  L,  R.  40  111,  440;  Daniels  v.  Hallenbeck,  19 

A.  1.  Wend.  410;  Daggitt  v.  Mensch,  141 

111.  395. 


DEFENSES    TO   AN    ACTION.  55 

struction  shall  he  adopted  which  is  most  unfavorable  to  the  party 
pleading.^ 

10.  Pleadings  must  not  be  by  way  of  recital,  but  must  be  pos- 
itive inform.^ 

11.  Things  are  to  be  pleaded  according  to  their  legal  effect  or 
operation!' 

12.  There  must  be  no  departure  in  pleading.* 

13.  Surplusage  is  to  be  avoided! 

SPECIAL   PLEAS   IN    BAR. 

It  is  the  essence  of  special  pleas  that  they  confess  the  truth 
of  the  allegations  which  they  propose  to  answer  or  avoid.  It 
was  formerly  the  practice  in  man\^  cases  to  frame  such  pleas 
with  a  formal  confession,  using  the  introductory  phrase  of 
"  true  it  is,  that,"  etc.,  and  then  proceeding  to  plead  in  answer 
to  the  matter  thus  explicitly  admitted.  But  this  method  is 
now  generally  abandoned.  It  is  essential,  however,  that  the 
confession,  though  not  express,  should  be  distinctly  implied  in, 
or  inferable  from,  the  matter  of  the  pleading." 

If  a  plea,  therefore,  purporting  to  be  by  way  of  confession 
and  avoidance  (or  not  pleaded  by  way  of  traverse),  does  not 
import  a  confession  of  the  adverse  allegations,  it  is  defective, 
and  insufficient.'  Pleadings  in  confession  and  avoidance  should 
give  clear  color.*    The  term   color  signifies  an  apparent   or 

'Ibid.  Sec.   198;  Knoebel  v,  Kir-  *  Ibid.  Sec.  211;  Libhy  v.  Brown, 

Cher,  33  111.  308;  Evans  v.  Comm'r,  1  4  Pick.  137;  Beard  v.  Hand,  88  Ind; 

Gilm.  654;  HalUgan  v.  R.  R.  Co.,  15  183;  Smith  v.  Nicolls,  5  Bing.  (N.  C.) 

111.  558;  Leman  v.  Stevenson,  36  111.  208;  Bank  v.  Hendrickson,  40  N.  J. 


49;  Vining  v.  Leeman,  45  111.  246 
Groff  V.  Ankenbrandt,  124  111.  51 
Claycomb  v.  Hunger,  51  111.  373 
Dougherty  v.    Catlett,  129   111.   431 


L.  52;  Murphy  \.  Bird,  1  Hemp.  221; 
Fiser  V.  R.  R.  Co.,  32  Miss.  539. 

5  Ibid.  Sec.  216;  Knoebel  v.  Kircher, 
33  111.  308;  Dugger  v.  Oglesby,  3  111. 


May  V.  Bank,  19  111.  App.  604;  Pen-  App.  94;  Shepherd  v.  Field,  70  lU. 

na.  Co.  V.  Ellett,  132  111.  662;  Law-  438;   Goff  v.   Ry.  Co.,  28  111.  App. 

rmce  v.  Trainor.  136  111.  485.  529. 

2  Ibid.  Sec.  205;  Hollingsworth  v.  « Stephen's  PI.  200. 
Holshausen,  17  Tex.  41;    Curtis   v.  '1  Satind.  13,  27;  Taylor  v.  Cole, 
Richards,  d  Cal  33.  8 Term  298;  McPherson  v.  Daniels, 

3  Ibid.   Sec.    206;  Ins.  Co.  v.  Rog-  10  Barn.  &  Cress.  268. 
ers,  119  111.  474.  ^  i  ciiit.  PI.  443,  446. 


56  DEFENSES    TO   AN    ACTION. 

prima  facie  right;  and  the  meaning  of  the  rule  that  pleadings 
in  confession  and  avoidance  should  give  color,  is  that  they 
should  confess  the  matter  adversely  alleged,  to  such  an  extent, 
at  least,  as  to  admit  some  apparent  right  in  the  opposite  party, 
which  requires  to  be  encountered  and  avoided  by  the  allega- 
tions of  new  matter.' 

When  a  plea  purporting  to  be  special  amounts  only  to  the 
o-eneral  issue,  it  will  be  obnoxious  to  a  special  demurrer." 
Where  the  general  issue  is  pleaded,  other  pleas  amounting 
merely  to  that  issue  may  be  rejected  on  motion; '  so  where 
two  or  more  pleas  are  substantially  alike,  all  but  one  may  be 
rejected  on  motion.*  A  special  plea  always  controls,  so  far  as 
it  goes,  the  general  issue.'  No  matter  of  defense  which  de- 
nies what  the  plaintiff  would  be  bound  to  prove  under  the 
general  issue  should  be  pleaded  specially." 

A  special  plea  which  simply  traverses  a  portion  of  tlie  facts 
which  the  plaintiff  is  bound  to  prove  to  establish  his  right  to 
recover  under  the  declaration,  is  bad,  as  amounting  to  the 
o-eneral  issue.'  The  object  of  special  pleading  is  to  present 
one  single  isolated  question,  or  point  in  issue,  so  as  to  avoid 
confusion;  but  as  many  distinct  facts  as  may  be  necessary  to 
present  one  cause  of  action,  or  defense,  may  be  set  forth  in  one 
count  or  plea.* 

A  special  plea  in  bar,  which  commences  as  an  answer  to  the 
whole  declaration,  and  answers  only  one  count,  is  bad.'     Every 

>  Steph.  PI.  203.  ''  Edwards  v.  Ti-ustees,  30  111.  App. 

^Ahrams  v,  Pomeroy,  13  111.  133;  528. 

Curtis  W.Martin,  20  III.  551;  Quincy  » Hereford  v.  Croiv,   3  Scam.  423; 

V.  Warficld,  25  111.  317;    Knoebel  v.  White  v.  Clayes,  32  111.  325;  Ins.  Co. 

Kircher,  33  111.  308;  Johnson  v.  Uni-  v.  Wusterhousen,  75  III.  285. 

versity,  35  111.  518;  Ogden  v.  Lucas,  9  Hinton  v.   Husbands,   3  Scam. 

48  111.  492;  Manny  v.  Rixford,   44  187;  Buckmaster  v.  Beames,  4  Gilm. 

111.  129;  Ferry  Co.  v.  Blakeman,  54  443;    Goodrich  v,  Reynolds,  31   111. 

jU   201.  490;    Allen  v.   Breusing,  32  111,  505; 

■i Knoebel  v.  Kircher,  33  111.   308;  Hatfield    v.    Cheaney,    76    111.   488; 

R.   R.  Co.  V.  Johnson,  34  111.   389;  Glickanf  v.  Hirschoi-n,  73  111.    574; 

Manny  v.  Rixford,  44  111.  129.  Ins.  Co.v.  Holly,  81  111.  353;  People  v. 

*Lomax    v.    Bailey,   7    Ind.    599;  McCormack,  68  111.    226;  Dickerson 

Wallace  v.  Scales,  36  Miss.  53.  v.  Hendryx,  88  111.  66. 

M2  La.  An.  739. 

6  Thayer  v.  Brervcr,  15  Pick.  217; 
Martin  v.  Woods,  6  Mass.  6. 


DEFENSES    TO    AN    ACTION.  57 

plea  must  answer  all  that  it  assumes  to  answer,  and  no  more.' 
A  special  plea  admits  every  material  allegation  except  the  one 
put  in  issue."  A  distinct  averment,  which  can  be  stricken  out 
without  injuring  the  other  averments,  will  not  vitiate  a  plead- 
ing,' unless  it  renders  the  pleading  double.  The  allegations 
of  the  plea  and  the  proof  must  correspond.*  A  plea  is  defect- 
ive which  is  not  good  as  a  defense  for  all  who  interpose  it. 
Matters  of  defense  affecting  a  surety  only  should  be  pleaded 
by  him  alone,  and  not  with  his  principals."  A  defendant  prov- 
ing one  of  several  pleas  in  bar  is  entitled  to  judgment.*  When 
a  law  of  another  state  is  relied  on  for  a  defense,  it  must  be 
pleaded.'' 

Must  answer  all  that  it  professes  to  answer. — It  is  a 
familiar  rule  that  a  plea  which  professes  to  answer  the  whole 
declaration,  but  only  answers  a  part,  is  bad." 

Pleas,  etc.,  as  to  a  part,  etc. — It  is  to  be  observed,  that  a 
a  plea  Avhich  only  contains  an  answer  to  a  part  of  the  declara- 
tion must  be  qualified  accordingly  in  the  commencement;  and 
a  like  rule  applies  to  all  subsequent  pleadings.  Such  a  plea 
may  commence  :  "  And  for  a  further  plea  in  this  behalf,  as  to 
all  the  counts  of  the  said  declaration  except  the  last,"  or  ''  as 
to  all  the  several  supposed  promises  in  the  said  declaration 

mentioned,  except  as  to  the  sum  of dollars,  parcel  of  the 

sums  of  money  in  the  said  declaration  mentioned,"  (or  as  the 
case  may  be,)  "  the  defendant  says  that  the  plaintiff  ought  not 
to  have  his  aforesaid  action,"  etc.     In  like  manner,  a  replica- 

'  Warren  v,    Nexen,  3  Scam.  38;  *  Spangler    v.    Pugh,    21    111.   85; 

Snyder    v.    Gaither,    3    Scam.    91;  Sherman  v.  Blackman,  2ill\.  Ml. 
C'hadsey    v.  Brooks,    2    Gilm.    378;  '  Beesley  v.  Hamilton,  50  111.  88. 

Goodrich  v.  Reynolds,  31    111.  490;  «  Letter  v.  Day,  35    111.  App.  248; 

Barclay  v.  Ross,  32  111.   211;    R.  R.  JMcClnrev.  Williams,  65  III.  390. 
Co.  V.  Read,  37  111.  484;    1  Chit.  PI.  ""  Chumasero  v.  Gilbert,  24111.293; 

453.  Mason  v.  Dousay,  35  111.  424. 

'  Waggeman  v.  Lombard,  56  111.  «  Peabody  v.  Kendall,  145  111.  519; 

42;  McClure  Y.  Williams,  65  IW.  390;  People  v.    McClellan,   137  III.  352; 

Gould's  PI.  317;  People  v.  Gray,  72  Titcomb  v.    Straight,   57  111.   App. 

111.  343.  331 ;  Rent  Co.  v.  Hutchinson,  25  III. 

3  Bank  v.    Billings,   17  Pick.  87;  App.  476. 
Stevens  v,  Bigelow,  12  Mass.  433. 


58  DEFENSES   TO    AN    ACTION. 

tion  may  commence  :  "  And  as  to  the  said  plea  of  the  defend- 
ant by  him  secondly  above  pleaded,  so  far  as  the  same  relates 
to  the  several  promises  in  the  said  first  and  third  counts  of  the 
said  declaration  mentioned,  the  plaintiff  says  that  he  ought 
not,  by  reason  of  anything  in  that  plea  alleged,  to  be  barred," 
etc. 

Common  and  special  similiter  to  plea,  etc.— When  the  de- 
fendant pleads  only  one  plea,  concluding  to  the  country,  the 
issue  is  made  up  by  adding,  at  the  end  of  the  plea,  the  com- 
mon shniliter,  in  these  words :  "  And  the  plaintiff  does  the 
like."  When,  however,  there  are  several  pleas,  some  conclud- 
ing to  the  country,  and  others  with  a  verification,  the  special 
similiter,  as  below,  is  proper  as  a  replication  to  all  the  former, 
inserting  the  words  "  secondly,"  "  thirdly,"  etc.,  "  above 
pleaded,"  etc.  This  applies  also  to  the  making  up  of  issues  on 
replications,  rejoinders,  etc.,  concluding  to  the  country. 


. Term,  18—. 


No.  10.    Special  similiter  to  plea. 
In  the Court. 

A.  B.   ) 

vs.      [  Assumi^sit. 
C.  D.    )      And  the  plaintiff,  as  to  the  plea  of  the  defendant  by  him  first 
above  pleaded,  and  whereof  he  has  put  himself  upon  the  country,  does  the 
like. 

Leave  to  file  pleas. — When  a  defendant  is  in  default  and 
asks  the  court  to  allow  him  to  file  certam  pleas,  he  will  be  re- 
quired to  present  with  his  motion  good  pleas.  This  rule  does 
not  apply  where  general  leave  to  plead  is  given.  If  pleas  filed 
thereunder  are  defective,  the  defect  can  be  reached  only  by 
demurrer.' 

Additional  pleas — Leave  to  file. — It  is  a  matter  of  discre- 
tion with  the  court  whether  to  allow  a  defendant  to  file  ad- 
ditional .pleas,  and  its  action  will  not  be  revived  unless  it  shall 
appear  that  such  discretion  has  become  abused,"    An  affidavit 

'  Bemis  v.  Homer,  145  111.  567.  Dana,  3  Gilm.  344;  Booth  v.  Brown, 

■^Dow  V.  Blake,  148  111.  76;  City  v.  66  111.  419;  Haas  v.  Stenger,  75  111. 

Water  Co.,   140  111.  445;  Bicker  v.  597;  Lewis  v.    Ljpich,    61  111.    App. 

Scofidd,  28  111.  App.  32;  Bryant  v.  476. 


DEFENSES    TO   AN    ACTION.  59 

is  not  essential  to  justify  leave  to  file  additional  pleas  where 
it  is  not  required  by  statute  and  all  the  facts  are  known  to  the 
court.* 

When  a  plaintiff  is  permitted  to  amend  his  declaration  in  a 
material  respect,  the  defendant  should  be  permitted  to  file  ad- 
ditional pleas." 

See  Defenses  to  the  Action  of  Assumpsit,  fost^  and  plead- 
ings in  bar  under  title  of  the  respective  forms  of  action. 

EEPLICATIONS  TO  PLEAS. 

For  forms  of  replications  in  particular  cases,  see  Defenses  to 
the  Action  of  Assumpsit,  ante^  and  pleadings  in  bar  under  titles 
of  the  respective  forms  of  action. 

Iso.  11.    Double  replications. 

{Venne,  and  title  of  cause.) 

And  tlie  plaintiff,  as  to  the  said  plea  of  the  defendant,  by  him above 

pleaded,  says,  precludi  non,  because  he  says,  etc. :  {Here  set  out  first  repli- 
cation.) 

And  the  plaintiff,  by  special  leave  of  the  court,  here  first  had  and  ob- 
tained, according  to  the  form  of  the  statute  in  that  case  made,  as  to  the  said 
plea  of  the  defendant  above  pleaded,  further  says,  precludi  non,  be- 
cause he  says:    {Here  insert  second  replication.) 

E.  F.,  Att'yforPl'ff. 

No.  12.     Similiter  to  replication,  concluding  to  the  country. 

{Venue,  and  title  of  cause.) 

And  the  defendant,  as  to  the  said  replication  of  the  plaintiff  to  the 

plea  of  the  defendant,  and  which  the  plaintiff  has  prayed  may  be  inquired 
of  by  the  country,  doth  the  like. 

G.  H.,Att'y  for  Deft. 

REJOINDERS   TO  REPLICATIONS. 

No.  13.     Commencement  of  a  rejoinder  to  replication  to  a  special  plea. 

{Venue,  and  title  of  cause.) 

And  the  defendant,  as  to  the  said  replication  of  the  plaintiff  to  the plea 

of  the  defendant,  says,  that  the  plaintiff  ought  not,  by  reason  of  anything  by 
him  in  that  replication  alleged,  to  have  or  maintain  his  aforesaid  action 
thereof  against  him,  the  defendant,  because  he  says,  that,  etc.:  {Here insert 

1  G.  W.   T.   &  Co.   V.  Loicenthal,  « Griswold  v.  Shaiv,  79    III.   449; 

154  111.  261.  McCarthy  v.  Neu,  91  111.  127. 


60  DEFENSES   TO   AN    ACTION. 

tlie  subject-matter  of  the  rejoinder,  and  if  it  deny  the  replication  conclude 
thus:)    And  of  this  the  defendant  puts  himself  upon  the  country,  etc. 

G.  H.,  Att  y  for  Deft. 

No.  15,     Conclusion  of  a  rejoinder  with  a  verification. 

And  this  the  defendant  is  ready  to  verify,  wherefore  he  prays  judgment 

if  the  plaintiff  ought  to  have  or  maintain  his  aforesaid  action  thereof  against 

the  defendant. 

G.  H.,  Atfy  for  Deft. 

No.  16.    Rejoinder  to  a  double  replication. 

{Venue,  and  title  of  cause.) 

And  the  defendant  says  that  the  plaintiff,  by  reason  of  anything  in  the 
replication  of  the  plaintiff  first  above  pleaded,  ought  not  to  have  or  main- 
tain, etc.,  because  the  defendant  says  :    (Here  insert  first  rejoinder.) 

And  as  to  the  matters  contained  in  the  plaintiffs  replication  secondly 
above  pleaded,  the  defendant  further  says  that  the  plaintiff,  by  reason  of 
anything  contained  in  such  replication  last  mentioned,  ought  not,  etc.,  be- 
cause the  defendant  says,  etc. :  (Insert  second  rejoinder.)  And  this  the  de- 
fendant prays  may  be  inquired  of  by  the  country,  etc. 

G.  H.  Atty  for  Deft. 

IV.     DEMURRERS. 

The  following  notes  and  observations  upon  the  subject  of 
demurrers  are  applicable  to  the  various  forms  of  action.  If 
the  defendant,  upon  examination  of  the  declaration,  is  satis- 
fied that  it  is  not  sufficient  in  point  of  law  to  maintain  the 
action,  he  should  demur.  If  some  of  the  counts  are  good  and 
some  bad,  he  should  plead  to  the  good  counts,  and  demur  to 
the  bad  ones.  The  demurrer  will  present  an  issue  in  law  upon 
the  facts  stated  in  the  declaration  or  counts,  and  this  issue  the 
plaintiff  is  bound  to  accept,  or  abandon  his  suit. 

Nature  of. — A  demurrer  is  an  allegation  that,  admitting 
the  facts  of  the  preceding  pleading  to  be  true,  as  stated  bj  the 
party  making  it,  he  has  yet  shown  no  cause  why  the  party 
demurring  should  be  compelled  by  the  court  to  proceed  fur- 
ther. It  is  a  declaration  that  the  party  demurring  will  go  no 
further  because  the  other  has  shown  nothing  against  him. 
It  imports  that  the  objecting  party  will  not  proceed,  but  w^ill 
wait  the  judgment  of  the  court  whether  he  is  bound  to  do  so.' 
A  party  can   not   demur  and   plead   at  the  same  time  to  the 

'  1  Bouv.  Law  Diet.,  507. 


DEFENSES   TO   AN    ACTION.  61 

same  count  or  plea.'  A  demurrer  may  be  to  the  whole  or  a 
part  of  the  pleading;  but  if  to  the  whole,  and  a  part  be  good,  it 
^Yi\\  be  overruled/ 

May  he  carried  back. — A  party  should  not  demur  unless  he 
is  certain  that  his  own  previous  pleading  is  substantially  cor- 
rect, for  it  is  an  established  rule,  that  upon  the  argument  of  a 
demurrer,  the  court  will,  notwithstanding  the  defect  of  the 
pleading  demurred  to,  give  judgment  against  the  party  whose 
pleading  was  first  defective  in  substance/  But  where  the 
general  issue  is  filed,  a  demurrer  can  not  be  carried  back  to 
the  declaration/ 

The  general  rule  that  a  demurrer  may  be  carried  back  and 
sustained  to  the  first  defective  pleading,  does  not  apply  so  as 
to  carry  a  demurrer  behind  a  plea  in  abatement/  The  rule 
applies  only  where  the  previous  pleading  is  bad  in  substance, 
and  not  defective  merely  in  form/ 

A  demurrer  to  a  special  plea  can  not  be  carried  back  to  the 
declaration,  after  a  direct  demurrer  to  the  declaration  has  been 
overruled,  and  the  general  issue  pleaded/  A  plea  of  non  est 
factum,  in  covenant,  not  being  the  general  issue,  will  not  pre- 
vent a  demurrer  to  a  special  plea  from  being  carried  back  to 
the  declaration/ 

^Am.  Ex.  Co.  V.  Pinckney,  29  111.  111.  340;  Dupeev.  Blake,  148  III.  453; 

392;  CTa?/co»i6  V.   Hunger,    51    111.  Schaluckyx.  Field,  124:111.  QVl\Dun- 

373;  Edbrookv.  Cooper,  79  111.  582;  lap  v,  Ry.    Co.,  151  111.  409;  Peojjle 

Cradle  v.  Hoffman,  105  111.  147.  v.  Spring  Valley,  129  111.  169. 

'•*  Walton  V.  Stephenson,  14  111.  77;  *  Mount  v.  Hunter,  58  111.  246;  Cul- 

Horan    v.    People,    10    Bradw.  21;  ver  v.  Bank,  64    111.  528;     Bills  v. 

Morehead  v.  Year^zee,  10  Bradw.  263;  Stanton,  6 J  111.  51;  E.  R.  Co.  v.  Uir- 

Tiptonv.  Corrigan,  10  Bradw.  318;  ton,  T2  111.  118;  Compton  v.  People, 

People  V.  Weber,  92  111.  288;  Mix  v.  86  111.  176;  Felsentliql  v.  Durand,  86 

People,    92    111.     549;    Bonham    v.  m.  230;   Shunick  v.   Thompson,  25 

People.  102  111.  434;  Reece  v.  Smith,  \\\,  App.  619. 

94  111.362.  ^Ryan  v.  May,  14  111.  49;  1  Chit. 

3 1  Chitty  PL,  580;  Phoebe  v.  Jay,  PI.  405. 

Breese,  268;  McDonald  v.  Wilkie,  13  «  Txibbs  v.  Castvell,  8  Wend.    129; 

111.  22;  R.  R.  Co.  v.  Neill,  16  111.  269;  Hooker  v.  Gallagher,  6  Florida  351; 

Culver  V.  Bank,  6i  in.  52S;  Chestmtt  Patton   v.    Hamner.    28    Ala.   618; 

V.  Chestnut,  11  111.  346;  Ins.  Co.  v.  Wales  v.  Lyon,  2mch.  216. 

Stanton,  57  111.  354;  Safford  v.  Mil-  '  Brainier  v.  Lomax,  23  111.  496. 

ler,  59  111.  205;  People  \.  McCormick,  <>  Reeves  v.  Forman,  26  111.  313. 
106  III.  184;    Stearns  v.  Cope,   109 


62 


DEFENSES    TO    AN    ACTION. 


Effect  of  demurrer. — A  demurrer  admits  all  such  matters 
of  fact  as  are  well  pleaded; '  but  not  the  arguments  or  legal 
conclusions  in  the  pleading.*  Where  a  demurrer  is  overruled 
to  any  pleading  its  sufficiency  is  established.* 

Pleading  over. — Where  a  demurrer  to  a  pleading  has  been 
sustained,  it  is  within  the  judicial  discretion  and  almost  a  mat- 
ter of  course  to  allow  an  amendment;  and  where  a  demurrer 
to  a  pleading  has  been  overruled,  like  liberal  practice  prevails 
in  the  State  of  Illinois,  and  it  is  almost  or  quite  a  matter  of 
course  to  allow  the  party  demurring,  to  plead  over.' 

Waiver  of  demurrer, — Where  a  party  files  a  demurrer 
which  is  overruled,  and  he  pleads  without  standing  by  his  de- 
murrer, the  demurrer  is  waived.^  By  pleading  to  a  declaration 
after  the  overruling  of  a  demurrer,  a  party  waives  his  right  to 
move  in  arrest  of  judgment,'  and  to  assign  the  decision  of  the 
court  as  error.'  A  plea  to  the  merits  is  a  waiver  of  a  de- 
murrer, but  a  demurrer  does  not  waive  a  plea  of   that  kind.* 


'  1  Chit.  PI.  662;  Compiler  v.  Peo- 
ple, 12  111.  290;  Deem  v.  Crume,  46 
111.  69;  Lindley  v.  Miller,  67  111.  244; 
Barrow  v.  Windoic,  71  111.  214; 
Nispel  v.Laparle,  74  111.  306;  People 
V.  Holdcii,  82  111.  93;  Arenz  v.  Weir, 
89  111.  25;  Greig  v.  Russell,  115  111. 
483;  Cerveny  v.  C.  D.  N.  Co.,  139  111. 
345;  People  v.  Cooper,  139  111.  461; 
R.  R.  Co.  V.  Horan,  131  111.  288;  De- 
vicnt  V.  Rokker,  126  111.  174;  Daggitt 
V.  Mensch,  141  111.  395. 

"^Compiler  v.  People,  12  111.  290; 
Nispel  V.  Laparle,  74111.  306;  Peojjle 
V.  Holden,  82  111.  93;  Johnson  v. 
Roberts,  102111.  655;  Greig  v.  Russell, 
115  111.  483. 

^  Miles  V.  Danforth,  37  111.  156; 
Hunter  v.  Bilyeu,  39  111.  367. 

^Stanton  v.  Kinsey,  151  111.  301. 

^  McLaughlin  v.  People,  17  Bradw. 
306;  Beer -v.  Philips,  Breese  44;  God- 
frey V.  Buckmaster,  1  Scam.  447 
Gilbert  v.  Maggord,  1  Scam.  471 
McFadden  v.  Fortier,  20    111.  509 


Snyder  v.  Gaither,  3  Scam.  91; 
Gardner  v.  Haynie,  42  111.  291; 
Camp  V.  Small,  44  111.  37:  Russell  v. 
-4cZm.,  4  Scam.  7;  Granger  v.  War- 
rington, 3  Gilm.  299;  Gordon  v. 
Reynolds,  114  111.  118;  R.  R.  Co.  v. 
Hill,  14  Bradw.  579;  Barnes  v. 
Brookman,  107  111.  317;  R.  R.  Co.  v. 
Morgenstern,  106  111.  216;  Dunlap  v. 
Ry.  Co.,  151  111.  409. 

^Shreffler  v.  Nadelhoffer,  133  111. 
536;  I.  b.  M.  V.  Paine,  23  111.  App. 
171. 

■>  McFadden  v.  Fortier,  20  111.  509: 
Walker  v.  Welch,  14  111.  277;  Brown 
V.  7ns.  Co.,  42  111.  366;  Vanderbilt  v. 
Johnson,  3  Scam.  49;  Geary  v. 
Bangs,  138  111.  77:  R.  R.  Co.  v.  Samp- 
son, 31  111.  App.  513;  McFarlan  v. 
Clayptool,  128  111.  397;  Ambler  v. 
Whipple,  139  111.  311;  Foltz  v. 
Hardin,  139  111.  405. 

» Marshall  v.  Duke,  3  Scam.  67; 
see  Am.  Ex.  Co.  v.  Pinckney,  29  111. 
392. 


DEFENSES   TO   AN    ACTION.  63 

May  be  general  or  special. — A  demurrer  may  be  general  or 
special.  A  general  demurrer  is  one  which  excepts  to  the  suf- 
ficiency of  a  previous  pleading  in  general  terms,  without 
pointing  out  specifically  the  nature  of  the  objection;  and  such 
demurrer  is  on  matters  of  substance.' 

A  special  demurrer  is  one  which  excepts  to  the  sufficiency 
of  the  pleadings  on  the  opposite  side,  and  shows  specifically 
the  nature  of  the  objection,  and  the  particular  ground  of  ex- 
ception. It  is  necessary  where  the  objection  is  to  the  form.'' 
Under  a  special  demurrer  no  objections  as  to  form  can  be  made 
other  than  those  stated  in  the  demurrer  itself.^  But  the 
party  may,  on  argument,  not  only  take  advantage  of  the  par- 
ticular faults  which  his  demurrer  specifies,  but  also  all  objec- 
tions in  substance.* 

Although  a  declaration  may  be  good  in  substance,  yet  if 
technically  defective,  a  special  demurrer  for  such  defect  will 
lie.' 

A  demurrer  for  matter  of  form  should  in  all  cases  be  special,' 
and  the  particular  exceptions  intended  to  be  relied  on  should 
be  minutely  set  forth.'  An  objection  for  matter  of  form,  not 
noticed  in  a  special  demurrer,  will  not  be  regarded  by  the 
court.*  A  single  count  may  be  divisible,  part  good  and  part 
bad;  in  such  a  case  a  demurrer  to  the  count  generally  will  not 
be  sustained." 

Duplicity  can  be  taken  advantage  of  only  by  special  de- 
murrer,'" stating  in  what  the  duplicity  consists."     The  objec- 

'1  Chit.  PI.  574,   639;  Mut.    Ace.  100;   Bodwell  v.  Parsons,   10  East. 

Ass'n  V.  Tuggles,  138  lU.  428.  359. 

■'Ee<id    V.     Walker,    52    III.    333;  '  Bogardus  v.  Trial,  1  Scam.  63;  1 

Holmes  v.  R.  R.  Co.,  94  111.  439.  Chit.  PI.  642;  Sfcph.  PL  159-161. 

^ Dryer    Co.   v.   C.    T.    Bank,   50  ^Snyder  v.    Croy,   2  Johns.   428; 

111.  App.  461.  Cover  v.  Armstrong,  Read  v.  Walker,  52  111.  833. 

66  111.  267;  Holmes  v.  R.  R.  Co.,  94  ^  Luskv.  CooAr,  Breese,  84:  Ins.  Co. 

111.  439.  V.  Menz,  63  111.  116;    Henriekson  v. 

n  Chit.  PI.  576.  Reinback,  33  111.  299;  Stout  v.  Whit- 

^Ry.  Co.  V.  People,    149    111.  663;  ney,  12  111.  218. 

Matson  v.  Swanson,  131  lU.  255.  '"  Franey  v.  True,  26  III.  184;  Kipp 

"Chit  PI.    574;    Dole  v.   Weeks,  4  v.  Bell,  86  III.  577;  1  Chitt}-  PI.  574. 

Mass.  451;   Lyon  v.  Fish,  20   Ohio,  ^^  Kipp  v.  Bell,  86  111.577. 


64  DEFENSES   TO    AN    ACTION. 

tion  that  a  pleading  is  argumentative  can  only  be  made  by 
special  demurrer,  showing  wherein  the  pleading  is  argumenta- 
tive.' If  it  appears  on  the  face  of  the  declaration  that  the 
plaintiff  has  neglected  to  sue  a  joint  contractor,  a  defendant 
may  demur  for  that  cause.'  A  plea  amounting  to  the  general 
issue  is  bad  on  special  demurrer; '  but  the  objection  can  not 
be  taken  on  general  demurrer.* 

A  o-eneral  demurrer  to  a  declaration  containing  several 
counts,  one  of  which  is  good,  and  the  others  bad,  can  not  be 
sustained.'  On  demurrer  to  a  declaration  reciting  a  written 
contract,  and  the  circumstances  under  which  it  was  made,  the 
-writing  must  be  construed  in  the  light  in  which  it  is  presented 
by  the  declaration.* 

Where  there  are  several  counts  in  a  declaration,  and  the 
defendant  demurs  to  the  whole  declaration,  and  says  that  the 
several  counts  are  not  suiRcient  in  law,  "  nor  is  either  of  them," 
etc.  his  demurrer  will  be  regarded  as  separate  to  each  count, 
and  may  be  sustained  as  to  such  counts  as  are  bad,  and  over- 
ruled as  to  the  others; '  but  it  is  otherwise  where  the  demurrer 
is  to  "  both  counts."  * 

If  the  defendant  wishes  to  avail  himself  of  a  defective  aver- 
ment in  a  declaration,  he  must  demur  to  it;  if  he  elects  to 
plead  to  the  declaration  and  go  to  trial,  he  has  no  right  to 
insist  upon  the  exclusion  of  evidence  because  some  necessary 

"  Cover  V.  Armstrong,  66  111.  267.  Governor  v.   Ridgeway,   12  HI.  14; 

*  McArthur  v.  Ladd,  5  Ohio  514;  Stout  v.  Whitney,  12  111.218;  Wal- 
Stevenson  v.  Cofferin,  20  N.  H.  150;  ton  v.  Stephenson,  14  111.  77;  Gilli- 
Dement  v.  Eokker,  126  111.  191;  1  Ian  v.  Gray,  14  111.  416;  Stacy  v. 
Chit  PI.  13.  14'  Baker,  1  Scam.  417;  Coivles  \ .  Litch- 

3  Cook  V.  Scott,  1  Gilm.  333;  Jack-  field,  2  Scam.  356;  Prather  v.  Vine- 
son  V,  Hobson,  4  Scam.  412;  Abrams  yard,  4  Gilm.  40;  Nash  v.  Nash,  16 
V.  Pomeroy,  13  111.  133;  Quiney  v.  HI.  79;  Tomlinv.  R.  R.  Co.,  28  111. 
Warfield,  25  111.  317;  Knoebel  v.  429;  Bristow  v.  Lane,  21  III.  194; 
Kircher,  33  111.  308;  Johnson  v,  Uni-  Barber  v.  Whitney,  29  III.  439;  Nick- 
versity,  35  HI.  518;  Ferry  Co.  v.  er son  v.  Sheldon,  Sd  III.  312;  Reece  v. 
Blakeman.  54  111.  201;  Governor  v.  Smith,  94  111.  362;  Ins.  Co.\.Frisch, 
Lagow,  43  111.  134;  McEwen  y.Ker-  29  111.  App.  265. 
foot,  37  111.  530.  ^  Stout  v.  Whitney,  12  111.  218. 

*  Cushman  v.   Hayes,  46  111.  145;  '  Sanford  v.  Gaddis,  13  111.  329. 
Ogden  v.  Lucas,  48  III.  492.  « Bristow  v.  Lane,  21  lU.  194. 

^Israel    v.  Reynolds,  11   111.  218; 


DEFENSES    TO    AN    ACTION.  65 

averment  is  omitted  or  defectively  set  forth.'  Where  a  defect- 
ive plea  is  filed,  the  proper  mode  to  meet  and  dispose  of  it  is 
by  demurrer — not  to  entirely  disregard  it  as  no  plea.*  Counts 
in  debt  and  assumpsit  can  not  be  joined;  and  a  demurrer  to  a 
plea  in  such  a  case  should  be  carried  back  to  the  declaration.' 

Where  the  defendant's  plea  goes  to  bar  the  action,  if  the 
plaintiff  demurs  to  it,  and  the  demurrer  is  determined  in  favor 
of  the  plea,  judgment  of  nil  capiat  should  be  entered,  notwith- 
standing there  may  be  also  one  or  more  issues  of  fact;  for  the 
reason  that  upon  the  whole  it  appears  the  plaintiff  had  no 
cause  of  action.* 

So  where  there  are  two  pleas,  and  replications  to  both,  to 
which  demurrers  are  interposed,  if  the  replications  are  defect- 
ive, and  one  of  the  pleas  is  good,  and  goes  in  bar  of  action, 
the  plaintiff  standing  by  his  defective  replication,  judgment  in 
chief  will  go  for  the  defendant,  although  the  other  plea  is  bad; 
for  one  party  can  not  have  a  judgment  upon  the  law,  and  the 
other  upon  the  facts."  A  failure  to  abide  by  a  demurrer  pre- 
cludes the  taking  advantage  on  error  of  any  defect  in  the 
pleadings.* 

A  plaintiff  can  not  crave  oyer  of  a  judgment  pleaded,  and  de- 
mur. The  plea  should  be  traversed.^  If  an  unanswered  demur- 
rer is  on  record,  and  the  party  demurring  goes  to  trial  by 
consent,  it  will  not  be  cause  for  reversal  of  the  judgment.* 
Taking  leave  to  amend  a  plea  demurred  to,  will  be  held  as  equiv- 
alent to  a  confession  of  the  demurrer.'  The  statute  of  limita- 
tions may  be  interposed  by  demurrer,  where  the  petition  or 
declaration  discloses  the  proper  facts  to  raise  the  question.'" 

' (7 rmf/«OMsev.i2o6iMson,  3  Scam. 7.  Whipple,  139  111.  311;  Foltz  v.  Har- 

•^Mix  V.  People,  86  111.  329.  din,  139  111.  405. 

3 1  Chit.  PI.  231 ;    Adams  v.  Har-  '  Hanna  v.  Yocum,  17  111.  387. 

din,  19  111.  273.  »  Parker  v.    Palmer,   22  111.  489; 

«  Ward  V.  Stout,  32  111.  399;  Miles  Davis  v.  Ransom,  26  111.  100. 

V.  Danforth,  37  111.  156.  »  Haven  v.  Green,  26  111.  252. 

5  Ward  V.  Stout,   32  111.  399;  see  '«  The  People  ex  rel.  v.  Boydet  al. 

Miles  V.  Danforth,  37  III.  156;  Hun-  132  111.  60;    Houston  v.  Workman, 

ter  V.  Bilyeu,  39  111.  367.  28  111.  App.  626;  City  v.  College,  56 

« Camp  V.  Small,  44  111.  37:  O.  M.  111.  App.  372. 
A.  V.  Paine,  122  111.  625;   Ambler  v. 
5 


68  DEFENSES    TO   AN    ACTION. 

Juclgmeiit  upon  demurrer. — When  a  jadgraent  is  given 
against  a  party  on  demurrer  to  a  pleading,  if  he  wishes  to  ob- 
tain a  review  of  the  judgment  he  must  stand  by  his  pleading.' 
Where  a  demurrer  to  a  plea  is  overruled,  the  court  should 
render  judgment  for  the  defendant  unless  the  plaintiff  asks 
and  obtains  leave  to  withdraw  the  demurrer  and  reply." 

A  judgment  upon  demurrer  for  defect  in  pleading  will  not 
bar  another  action  for  the  same  cause.^  The  proper  judg- 
ment in  overruling  a  demurrer  to  a  plea  in  abatement  is,  that 
the  writ  be  quashed."  And  if  the  demurrer  is  sustained,  the 
judgment  is  quod  respondeat  ouster!' 

Where  a  demurrer  of  a  plaintiff  to  a  plea  is  overruled,  and 
he  abides  his  demurrer,  the  court  will  render  a  judgment  for 
the  defendant.**  It  is  error  to  take  judgment  on  a  demurrer 
to  special  counts,  while  a  plea  to  other  counts  remains  undis- 
posed of,' 

Demurrer  to  evidence. — A  demurrer  to  evidence  is  analo- 
gous to  a  demurrer  in  pleading;  the  party  from  whom  it 
comes  declaring  that  he  will  not  proceed  further  because  the 
evidence  offered  on  the  other  side  is  not  sufficient  to  maintain 
the  issue.  Upon  joinder  in  demurrer  by  the  opposite  party 
the  jury  are  in  general  excused  from  giving  any  verdict.^  As 
the  only  question  presented  on  a  demurrer  to  evidence  is 
whether  the  evidence  is  sufficient,  in  law,  to  maintain  the  issues 
of  fact,  no  exception  can,  on  such  demurrer,  be  taken  to  any 
defect  in  the  pleadings.  The  demurrer  does  not  extend  to 
them.* 

^Lullman  v.  liarrett,  18  Bradw.  ^Motherell  v,  Beaver,  2  Gilm.  69; 

573;    Gilbert  v.  Maggord,  1   Scam.  Cushman  v.  Savage,  20  111.  330. 

471;  Snyder  v.  Gaither,  3  Scam.  91;  ^Ryan  v.  3Iay,  14  Dl.  49;    1  Chit. 

Gardner  v.  Haynie,  42  III.  291;  Snell  PI.  405. 

V.  Cottingham,  72  III.  161;  McCor-  ^  }Veatherford  v.  Wilson,  2  Scam. 

mick  V.   Tate,  20  lU.  334;  Camp  v.  253;    Ward    v.   Stout,   32  III.    399; 

Small,  44  III.  37.  Miles  v.  Danforth,  37  111.  156;  R.  R. 

2  Weatherford  v.  Wilson,  2  Scam.  Co.  v.  Andreses,  53  III.  176;  Hull  v. 
258.  Johnston,  90  III.  604. 

3  Vallandingham  v.  Ryan,  17  III.  "  McAllister  v.  Ball,  24  III.  149. 
25;   Lavipen  v.   Hedgewin,  1   Mod.  ^  Andrews'  Steph.    PI.     §  93;    see 
207;  Gilman  v.  Rives,   10  Pet.  301;  Crowe  v.  People,  92  III.  231. 
Wilbur  V.   Gilmore,   21    Pick.   253;  ^  Rothschild  v.  Bruscke  et  al,  131 
Gould  V.  R.  R.  Co.,  91  N.  J.  526.  III.  265. 


DEFENSES   TO   AN   ACTION.  67 


Term,  18  — . 


No.  17.    Demurrer  to  a  declaration. 
In  the Court, 

ats.    [-  Assumpsit. 

A.  B.  )  And  the  defendant,  by  E.  F.,  his  attorney,  comes  and  defends, 
etc.,  when  etc.,  and  says,  that  the  said  declaration,  and  each  count  thereof 
(or  "  the  said  first  count  of  the  said  declaration"),  and  the  matters  therein 
contained,  in  manner  and  form  as  the  same  are  above  set  forth,  are  not  suffi- 
cient in  law  for  the  plaintiff  to  maintain  his  aforesaid  action,  and  that  he, 
the  defendant,  is  not  bound  by  law  to  answer  the  same;  and  this  he  is 
ready  to  verify:  Wherefore,  for  want  of  a  sufficient  declaration  (or  "  first 
count,"  etc.)  in  this  behalf,  the  defendant  prays  judgment,  and  that  the 
plaintiff  may  be  barred  from  maintaining  his  aforesaid  action,  etc. 

When  the  demurrer  is  designed  to  be  special,  add  to  the 
above  form  as  follows  : 

And  the  defendant  shows  to  the  court  here  the  following  causes  of  de- 
murrer to  the  said  declaration,  a  ?id  each  count  thereof  (or,  "first  count"), 
that  is  to  say,  that  (here  set  forth  the  particular  causes,  and  conclude  thus): 
And  also  that  the  said  declaration,  and  each  count  thereof  {or,  "first 
count"),  is  in  other  respects  uncertain,  informal  and  insufficient,  etc. 

If  desired,  the  several  causes  of  demurrer  can  be  set  forth  in 
separate  paragraphs,  and  numbered. 

No.  18.    Joinder  in  a  demurrer  to  a  declaration  or  replication. 

In  the Court. 

Term,  18—. 

A.  B.    ) 
vs.      >  Assumpsit. 

CD.  )  And  the  plaintiff  says,  that  the  said  declaration  {or  "first 
count,"  07-  "replication")  and  the  matters  therein  contained,  in  manner 
and  form  as  the  same  are  above  set  forth,  are  sufficient  in  law  for  him  to 
maintain  his  aforesaid  action;  and  he  is  ready  to  verify  the  same,  as  the 
court  here  shall  direct :  Wherefore,  inasmuch  as  the  defendant  has  not 
denied  thesaid  declaration  (or  "first  count,"  or  "  replication,"),  the  plaintiff 
prays  judgment,  and  his  damages,  etc.,  to  be  adjudged  to  him,  etc. 

A  joinder  in  a  demurrer  to  a  declaration  or  replication  in 
debt,  covenant,  detinue,  case  or  trespass,  is  like  the  above  form, 
except  in  the  prayer  of  judgment,  which  is  the  same  as  in  the 
conclusion  of  a  replication  in  the  particular  form  of  action. 

The  two  following  forms,  prescribed  in  England  by  the  rule 


68  DEFENSES    TO    AN   ACTION. 

of  court  of  Ilil.  T.  4  Will.  IV.,  are  given  in  Stephen  on  Plead- 
ing, pages  45  and  56  respectively. 

No.  19.     General  demurrer  to  a  declaration. 

{Title  of  court,  etc.)    And  the  said  defendant,  by his  attorney,  says 

that  the  declaration  is  not  sufficient  in  law. 

No.  SO.    Demurrer  to  a  plea  in  abatement. 

{Title  of  court,  etc.,  as  in  No.  18,  ante.)  And  the  plaintiff  says,  that  the 
said  plea  of  the  defendant,  and  the  matters  therein  contained,  in  manner 
and  form  as  the  same  are  above  pleaded,  are  not  sufficient  in  law  to  quash 
the  said  writ,  and  that  he,  the  plaintiff,  is  not  bound  by  law  to  answer  the 
same;  and  this  he  is  ready  to  verify:  Wherefore,  for  want  of  a  sufficient 
plea  in  this  behalf,  the  plaintiff  prays  judgment,  and  that  the  defendant 
may  answer  further  to  tlie  said  declaration,  etc. 

Special  causes  of  demurrer  may  be  added,  as  suggested  under 
form  No.  17,  ante.  It  is  said  that  the  plaintiff  need  never 
demur  specially  to  a  plea  in  abatement,  but  that  it  appears 
most  advisable  to  do  so  when  the  plea  is  merely  informal.' 

No.  21.    Joinder  in  a  demurrer  to  a  plea  in  abatement. 

{Title  of  court,  etc.,  as  in  No.  17.  ante.)  And  the  defendant  says,  that 
his  plea,  and  the  matters  therein  contained,  in  manner  and  form  as  the 
same  are  above  pleaded,  are  sufficient  in  law  to  quash  the  said  writ;  which 
said  plea,  and  the  matters  therein  contained,  he  is  ready  to  verify,  as  the 
court  here  shall  direct :  Wherefore,  inasmuch  as  the  plaintiff  has  not  de- 
nied the  said  plea,  the  defendant  as  before  prays  judgment  of  the  said  writ, 
and  that  the  same  may  be  quashed,  etc. 

A  demurrer  to  a  plea  to  the  jurisdiction,  and  a  joinder  in 
such  demurrer,  will  follow  the  language  of  the  plea.  After  a 
demurrer  to  a  plea  in  abatement  has  been  overruled,  the  court 
can  not  grant  leave  to  reply  to  the  plea." 

No.  22.     Demurrer  to  a  plea  in  bar. 

(Similiter  to  general  issue,  as  ante,  No.  10.)  And  the  plaintiff,  as  to  the 
plea  of  the  defendant  by  him  secondly  above  pleaded,  says  that  the  same,  and 
the  matters  therein  contained,  in  manner  and  form  as  the  same  are  above 

1  Chit.  PI.  404,  576.  Tl.  A05;  3Iotherell  v.  Beaver,  2Gilm. 

'  Eddy  V.  Brady,  16  111.  306;  Cush-  69;  McKinstry  v.  Pennoyer,  1  Scam. 
man  v.  Savage,  20'  111.  330;  1  Chit.      319. 


DEFENSES    TO    AN    ACTION.  69 

pleaded,  are  not  suflBcient  in  law  to  bar  him,  the  plaintiff,  from  having  his 
aforesaid  action,  and  that  he  is  not  bound  by  law  to  answer  the  same;  and 
this  he  is  ready  to  verify:  Wherefore,  for  want  of  a  sufficient  plea  in  this 
behalf,  the  plaintiff  prays  judgment,  and  his  damages,  etc.,  to  be  adjudged 
to  him,  etc. 

Special  causes  of  demurrer  may  be  added,  as  suggested  under 
form  No.  17,  ayite. 

In  debt,  the  plaintiff  "  prays  judgment,  and  his  debt  afore- 
said, together  with  his  damages,  etc.,  to  be  adjudged  to  him," 
etc.' 

No.  23.    Joinder  in  a  demurrer  to  a  plea  in  bar. 

{Title  of  court,  etc.,  as  in  No.  17,  ante.)  And  the  defendant  says,  that 
his  said  plea  by  him  secondly  above  pleaded,  and  the  matters  therein  con- 
tained, in  manner  and  form  as  the  same  are  above  pleaded,  are  sufficient  in 
law  to  bar  the  plaintiff  from  having  his  aforesaid  action;  and  he,  the  de- 
fendant, is  ready  to  verify  the  same,  as  the  court  here  shall  direct :  Where- 
fore, inasmuch  as  the  plaintiff  has  not  denied  the  said  plea,  the  defendant 
prays  judgment,  and  that  the  plaintiff  may  be  bai'red  from  having  his  afore- 
said action,  etc. 

Joinder  in  demurrer. 

{Title  of  court,  etc.)  And  the  plaintiff  says  that  the  declaration  is  suffi- 
cient in  law. 

It  will  be  observed  that  these  forms  contain  no  prayer  of 
judgment. 

'  Motherdl  v.  Beaver,  2  Gilm.  69;  Kinstry  v.  Pennoyer,  1  Scam.  319;  1 
Cushman  v.  Savage,  20111.330;  Mo      Chit.  PI.  405. 


CHAPTER  IV. 

ASSUMPSIT. 

Nature  of  the  action. — Assumpsit  in  the  matter  of  contracts, 
is  an  undertaking,  either  expressed  or  implied,  to  perform  a  parol 
contract.  An  action  of  assumpsit,  so  called,  is  an  action  on 
the  case,  and  is  properly  entitled  an  action  of  trespass  on  the 
case.'  It  is  an  equitable  action.^  It  differs  from  debt^  since 
the  amount  claimed  need  not  be  liquidated,  and  from  covenant^ 
since  it  does  not  require  a  contract  under  seal  to  support  it.^ 

Express  assumpsit  is  an  undertaking  made  orally,  by  writ- 
ing, not  under  seal,  or  by  matter  of  record,  to  perform  an  act 
or  to  pay  a  sum  of  money  to  another. 

Implied  assumpsit  is  an  undertaking  presumed  in  law  to 
have  been  made  by  a  party,  from  his  conduct,  although  he  has 
not  made  an  express  promise.  The  law  presumes  such  an  un- 
dertaking or  promise  to  have  been  made,  on  the  ground  that 
every  person  is  supposed  to  have  undertaken  to  do  what  is,  in 
point  of  law,  just  and  right.  Such  an  undertaking  is  never 
implied  where  the  party  has  made  an  express  promise;  nor  or- 
dinarily against  the  express  declaration  of  the  party  to  be 
charged.*  ISTor  will  it  be  implied  unless  there  be  a  request  or 
assent  by  the  defendant  shown,"  though  such  request  or  assent 
may  be  inferred  from  the  nature  of  the  transaction,'  or  from 

'  Carter  v.    White,    33    111.    509;  *  Bouv.  L.    D.  159;    2    Greenleaf 

Comyns'  Dig.;  1  Chit.  PI.  Ill,  112.  Ev.,  Sec.  103:  Jewett  v.  Somerset,  1 

"^  Smith   V.    Riddell,    87    111.  165;  Maine  125;  Wheelocky.  Freeman,  13 

Sandoval  v.  Main,  23  111.  App.  395;  Pick.  165. 

Watson  V.    Woolverton,  41  III.  241;  ^  Greenleaf  Ev.,  Sec.  107;  Webb  v. 

Bennett  v.  Connelly,  103  111.  50.  Cole,  20  N.  H.  490. 

3  See  Debt    and   Covenant,    post;  *  Haicley  v.    Sage,   15  Conn.    52; 

North  V.  Nichols,  37  Conn.  375.  Hall  v.  R.  R.  Co.,  28  Vt.  401. 

(70) 


ASSUMPSIT.  71 

the  silent  acquiescence  of  the  defendant; '  or  even  contrary  to 
fact,  on  the  ground  of  legal  obligation.^ 

Special  assumpsit  is  an  action  of  assumpsit  brought  upon 
an  express  contract  or  promise;  and  general  assumpsit  is  an 
action  of  assumpsit  brought  upon  the  promise  or  contract  im- 
plied by  law  in  certain  cases. 

In  order  to  sujiport  assumpsit  there  must  be  a  promise  or 
undertaking  on  the  part  of  the  defendant,  express  or  implied, 
for  a  promise  or  contract  is  the  very  gist  of  the  action.'  An 
express  promise  excludes  an  implied  one.*  A  promise  is  a  suf- 
ficient consideration  for  a  promise  upon  which  to  found  an 
action." 

Where  the  action  lies. — The  action  of  assumpsit  lies  where 
a  party  claims  damages  for  a  breach  of  a  simjile  contract,  a 
contract  not  under  seal;  and  such  promise  may  be  implied  as 
well  as  expressed.  The  law  always  implies  a  promise  to  do 
that  which  a  party  is  liable  to  perform.* 

Where  the  duty  for  the  breach  of  which  an  action  is  brought 
would  not  be  implied  by  law  by  reason  of  the  relations  of  the 
parties,  whether  such  relations  arose  out  of  a  contract  or  not, 
and  its  existence  depends  solely  upon  the  fact  that  it  has  been 
expressly  stipulated  for,  the  remedy  is  in  assumpsit,  and  not  in 
tort,  when  otherwise,  case  is  an  appropriate  remedy.'  It  lies 
w^henever  the  defendant  has  obtained  money  of  the  plaintiff, 
which  in  equity  and  good  conscience  he  has  no  right  to  retain.* 

^  22  Am.  Jur.  2;   Doty  v.  Wilson,  *  Compton  v.  Payne,  69  111.  354. 

14  Johns.  378;   Bradley  v.  Rkliard-  ^  GiIfillanv.FarriHgton,12Bradw. 

son,  2  Blatch.  343;  Campbell  v.  Day,  101;  Funk  v.  Hough,  29  111.  145. 

90  111.  363.  ^Frazer  v.  Carpenter,  2  McLean 

-  Alna  V.  Plummer.  4  Maine  258;  237;  Metcalf  v.  Robinson,  2  McLean 

McCloskey  v.  Miller,  72  Pen.  St.  151 ;  334. 

1  Chit.  PI.  98,  99;   Hanover  v.  Tur-  '  Xevin  v.  P.  P.  C.  Co.,  106  111.  222. 

ner,    14    Mass.    227;     Hapgood    v.  ^Trumhidl  v.  Campbell,  3  Gilm. 

Houghton,  10  Pick.   156;    Wheeloek  502:  Stejyhensony.  Manny,  5Q  III.  160; 

V.  Brinek,  13   Johns.    480;    Force  v.  Taylor  v.  Taylor.  20  111.  650;  Sanga- 

Haines,  17  N.  J.  L.  385.  inon  v.  Springfield,  63  111.  66;  Alder- 

'^ Farmer  Co.  v.  Taylor,  69  111.  440;  son  v.  Ennot,  45  111.   128;  Allen  v. 

Wings  v.  Broini,  12  Rich.  279;  Lan-  Stenger,  74  111.  119;  Belden  v.  Per- 

chester  v.  Frewer,  2  Bing.  361;  Cand-  kins,  78  111.  449;  Barnes  v.  Johnson, 

ler  V.  Eossiter,  10  Wend.  487.  84  111.  95;  Laflin  v.  Howe,  112  111.  253; 


72  ASSUMPSIT. 

It  lies  to  recover  money  lent  by  the  plaintiff  to  the  defend- 
ant, or  paid  by  the  plaintiff  on  account  of  the  defendant  at 
his  request;  or  for  money  had  and  received  by  the  defendant 
to  the  plaintiff's  use;  against  an  officer  for  fees  illegally  taken; ' 
or  for  money  unlawfully  demanded;"  against  a  municipality 
for  taxes  paid  under  an  illegal  assessment  or  sale; "  to  recover 
an  illegal  tax  paid  under  protest;  *  money  paid  by  mistake;  * 
or  under  a  misapprehension  of  facts,  or  where  there  has  been 
a  total  failure  of  consideration;  *  and  monev  obtained  throuo-h 
fraud  and  false  representation;  ^  and  against  a  common  carrier 
for  failing  to  deliver  goods  which  he  was  employed  to  convey 
for  the  plaintiff/ 

It  lies  on  promises  to  pay  or  repay  money,  or  to  do  or  for- 
bear some  other  act;  as,  for  goods  sold  and  delivered,  for  work 
and  labor,  use  and  occupation,  for  money  lent  or  money  paid, 
for  money  had  and  received,  and  on  an  account  stated.  It  also 
lies  for  a  breach  of  warranty,  express  or  implied,  in  the  sale  or 
exchange  of  chattels,  or  the  breach  of  a  contract  of  bailment, 
or  to  recover  for  the  labor  of  servants,  or  to  recover  the  con- 
sideration money  for  land  sold,  on  a  promise  to  pay  a  debt 
barred  by  the  statute  of  limitations,  and  for  unpaid  installments 
of  a  subscription  to  the  stock  of  an  incorporated  company.* 

Assumpsit  lies  against  a  husband  or  father  for  necessary 
supplies  furnished  to  his  wife  or  child,  whom  he  is  bound  to 
support,  and  has  refused  or  neglected  to  supply,  notwithstand- 

Harrison  v.  CoquiUard,  26  111.  App.  Mitchell,  88  111.  52;  People  v.  Foster, 

513;  Chemical  Bank  v.  Bank  of  Port-  133  111.  496;  Devine  v.  Edwards,  101 

age,  156  111.  149.  111.  138;    Ass'n  Co.  v.  Scammon,  133 

'  2  Serg,  &  Rawle,  48;  Mayfield  v.  111.  v.    627;    Bank  v.  Bartalott,  11 

Moore,  53  111.  428.  Bradw.  620. 

« Ripley  v.  Gelston,  9  Johns.  201.  « Bradford  v.  Chicago,  25  111.  411 ; 

3  Bradford  v.  Chicago,  25  111.  411;  Raney  v.  Boyce,  39  111.  24;  Town  v. 

Stephenson  v.   Manny,    56  111.  160;  Wood,  37  111.  512. 

Sup.  V,  Spmngfield,  63  111.  66.  ''Dana  v.   Kemble,  17  Pick.  545; 

*Falkner  v.    H%int,    16  Cal.    167;  Byxbie  v.Wood,24.^.Y.m'1;  Moses 

Ford  V.  Holden,  39  N.  H.  143;  City  v.  McFerlan,  2  Burr  1012. 

V.  Powell,  2  Mete.  (Ky.),  226;  Bank  ^Bowling  v.    Stewart,    3    Scam. 

T.  Mumford,  4  R.  I.  478.  193;  1.  C.  R.  R.  v.  Johnson,  34  111. 

»  Tmmhull  v.    Campbell,  3  Gilm.  389. 

502;  Stempel  v.  Thomas,  89  111.  146;  » 1  Wait's  Ac.  &  Def.  378,  and  cases 

Wolf  V.  Beard,  123  111.  585;  Bank  v.  there  cited. 


ASSUMPSIT.  73 

ing  his  protestations  against  his  liability; '  and  against  an  attor- 
ney for  negligence  in  transacting  the  business  of  his  profession." 

It  lies  for '  the  value  of  goods  -which  the  defendant,  by 
fraud,  induced  the  plaintiff  to  sell  to  an  insolvent  person,  and 
afterward  obtained  for  his  own  benefit;^  upon  an  express 
promise  to  pay  a  debt  upon  a  specialty,  upon  a  new  considera- 
tion, as  for  forbearance;  *  and  for  a  penalty  forfeited  upon  a 
by-law.' 

One  who  accepts  a  deed  poll,  requiring  him  to  pay  money, 
is  liable  in  assumpsit,  to  pay  such  sum."  Where  there  is  no 
contract  relation  between  the  receiver  of  a  telegram  and  the 
telegraph  company  transmitting  the  same,  the  former  can  not 
maintain  assumpsit  against  the  latter  for  a  loss  caused  by  a  neo-- 
lect  to  send  the  message  correctly.'  It  may  be  maintained  bv 
an  officer  selling  property  under  execution,  against  an  accepted 
purchaser  for  the  amount  of  his  bid.*  It  will  lie  upon  a 
judgment  in  condemnation  proceedings,  after  possession  has 
been  taken  of  the  propert}^' 

Under  section  19  of  the  present  Practice  Act,  assumpsit  mav 
be  maintained  upon  sealed  instruments.  That  section  has 
abolished  the  distinction  between  sealed  and  unsealed  instru- 
ments."* Money  lost  at  gaming,"  or  betting  on  elections, 
horse  racing  and  the  like,''  may  be  recovered  in  this  action. 

'  Hunt  V.  Thompson,  3  Scam.  179;  Freeman  on  Executions,  Sec.  313  li; 

Philli2)s  V.    Myers,   83   111.  67;    Van  Herman  on  Execution,  Sec.  211. 

Valkenburg  v.Watson,13  Johns.  4S0  ^  City  \.  Hayward,  60  111.    App. 

*  Church  V.  Mimiford,  11   Johns.  582. 

4:1%;  Stimpsonx.  Spragne,  Q  Maine,  '"/ns.    Co.  v.  Nelson.  65  111.   415; 

471;  Ellis  v.  Henry,  5  J.  J.   Marsh.  Ins.  Co.  v.  Palmer,  81  111.  88;  Daeg- 

(Ky.)  248.  ling  v.  Schwctrtz,  80  111.  820;    Ed- 

^  Bonnell  v.  Cliamherlin,  26  Conn.  wards  v.  Dillon.    147  111.   14;  Ceme- 

487.  tery  v.  Weidenmann,  139  111.  67. 

*  Knowlton  v.  Tiltoa,  38  N.  H.  257.  "  1  Starr  &  Curtis'  An.   Stat.  792; 
^  Bavingtonv.  B.  R.  Co.,3i:Feim.  Tatman     v.    Stradcr,   23    111.    493; 

358.  Doxey  v.  3Iiller,  2  Bradw.  30;  Lock- 
« Schynidt  v.    Glade,   126  111.   485;  hart    v.  Hullinger,   2    Bradw.  465; 
Guild  V.    Leonard,    18    Pick.    511;  Parmalee  v.  Rogers,26  111.  5Q;  Gar- 
Goodwin  V.  Gilbert,  9  Mass.  510.  rison  v.  McGregor,  51  111.  473;  Petil- 

'  W.  U.  T.  Co.  V.  Dubois,  128  III.  Ion  v.  Hippie,  90  111.  420. 

248.  ^^  Holland  v.   Sivai7i,  94   111.   1.54; 

8  Webb  V.  Perkins,  60  111.  App.  91;  Mosher  v.  Griffin,  51   111.  184;  Painn- 

alee  v.  Rogers,  26  111.  56. 


74  ASSUMPSIT. 

Where  a  party  performs  labor  under  a  special  contract,  and 
has  been  prevented  by  the  act  or  default  of  the  opposite  party 
from  completing  it,  he  may  recover  for  such  labor  in  an  action 
of  assumpsit.'  If  one  person  converts  the  propert}^  of  another 
into  money  or  money's  worth,  the  owner  may  waive  the  tort, 
and  recover  for  money  had  and  received  for  his  use." 

Where  a  judgment  has  been  reversed  upon  an  appeal  or 
writ  of  error,  assumpsit  may  be  maintained  to  recover  money 
paid  under  it,  or  collected  on  execution.^  Where  a  broker  em- 
ployed to  make  sale  of  grain  for  future  delivery,  advances 
money  to  fill  the  contract,  he  may  recover  same  in  assumpsit.* 
A  surety,  on  the  payment  of  the  debt,  may  recover  in  assump- 
sit.' 

Consideration  of  contract. — Every  promise,  for  the  non- 
performance of  Avhich  an  action  of  assumpsit  may  be  main- 
tained, must  be  founded  upon  a  sufficient  consideration. 
Madum  pactum,  or  an  agreement  to  do  or  pay  anything  on  one 
side,  Vv'ithout  any  compensation  on  the  other,  is  wholly  void  in 
law.*     If  founded  on  an  illegal  consideration  it  is  also  void.' 

But  any  act  of  the  plaintiff  from  which  the  defendant 
derives  a  benefit  or  advantage,  or  any  labor,  detriment  or  in- 


^  Butts  V.  Huntley,  1  Scam.  410 
Selby  V.  Hutchinson,  4  Gilm.  319 
Bannister    v.   Bead,   1    Gilm.    100 


3  McJilton  V.  Love,  13  II'.  486; 
Clayes  v.  White,  83  III.  540;  Field  v. 
Anderson,  103  111.  403;  McLagan  v. 


Beedv.  Fhillips,  4  Scam.  40;  Her-  Brown,  11  111.  524;   Hays  v.  Cassell, 

rington  v.  Hubbard,   1  Scam.   569;  70  111.670;  Herman  on  Ex.  608;  Free- 

Webstery.  En  field,  ^G\\m.2^S\  Lin-  man    on  Ex.,  §  347;    Freeman    on 

coin  V.  Schwartz,  70  111.  135:  Bishop  Judgments,  §§  482,  483. 

V.  Bauer,  62  111.  188;  Cemetery  v.  Wei-  "  Perin  v.  Parker,  126  111.  201. 

denmann,  139  111.  67.  ^Junker  v.  Bu.ih,  136  111.  179. 

^Dickinson  v.    Whitney,   4  Gilm.  ^Merkle  v.   Werheim,  32  111.  534; 

406;  Gray  v.  St.   John,  35  111.   222;  Kirkpa trick  v.  Taylor,  43    111.  207; 

Sfaaf  V. -Erans,  35  111.  455;  Alderson  Hennessey  v.  Hill,  52  111.  281;  ilfc- 

V.  Ennor,   45  111.    128;  De  Clerg  v.  Lean  v.  McBean,  74  111.  134;  Wilson 

Murgin,  46  111.   112;  Creel  v.    Kirk-  v.  Keller,  9  Bradw.  347;  Greenman 

ham,  47  111.  344;  Leonard  v.  Dunton,  v.  Greenman,  107  111.  404. 

51  111.  482;  Ives  v.  Hartley,   51  111.  ■"  Henderson  v.  Palmer,  71  111.  579; 

520;  Parker  v.    Tiffany,  52  111.  286;  Tenneyv.  Foote,  95  111.  99;  Patonv. 

Mclntyre  v.   Thompson,   14  Bradw.  Stetvart,    78  111.    481;   Wolf  v.  Flet- 

554;  City  of  Elgin  v.  Joslyn,  133  111.  meyer.  83  111.  418;  B.  B.  Co.  v,  Math- 

525.  ers,  104  111.  257. 


ASSUMPSIT.  To 

convenience  sustained  by  the  plaintiff,  hoAvever  small  the 
benefit  or  inconvenience  may  be,  is  a  sufficient  consideration  if 
such  act  is  performed  or  such  inconvenience  suffered  by  the 
plaintiff  with  the  consent,  either  express  or  implied,  of  the 
defendant.' 

Privity  of  contract. — To  maintain  the  action,  there  must  be 
a  privity  between  the  parties,  but  it  may  be  a  ^jrivity  in  fact 
or  in  law.'  If  the  plaintiff  is  a  stranger  to  the  consider- 
ation he  can  not  maintain  assumpsit.^  But  a  party  may 
maintain  an  action  on  a  promise  made  to  a  third  party  for  his 
benefit.^ 

COMilEXCEMENT   OF   AN   ACTION    OF    ASSUMPSIT. 

Form  of  praecipe  for  summons. 

In  the Court  of  the  County  of ,  in  the  State  of  Illinois. 

A.  B.      ) 

vs.       >     Assumpsit.    Damages  $ . 

C.  D.      ) 

The  clerk  of  the  said  court  will  issue  a  summons  in  the  above  entitled 

cause,  directed  to  the  sheriff  of  the  county  of  ,  and  retui'uable  at  the 

next term,  A,  D.  18 — . 

Dated  this day  of ,  A.  D.  18—. 

E.  F.,  Attorney  for  Plaintiff. 

To Esq. 

Clerk  of  said  Court. 

DECLARATIONS  IN  ASSUMPSIT. 

No.  S^.     Commencement  and  conclusion  of  a  declaration  in  assumpsit. 

In  the Court. 

Term,  A.  D.  18—. 

State  of  Illinois,  )  ^.^ 

County  of .      [  " 

A.  B.,  plaintiff,  by  E.  F.,  his  attorney,  complains  of  C.  D.,  defendant,  of 

^Hulse  V.   Hulse,   84  Eng.   Com.  W.  U.  T.  Co.  \.  Dubois, -[2%  m.  US; 

Law  R.   711;  Davis  v.  Nisbett,  100  Neillv.  Chessen,  15  Bradw.  266;  At- 

Id.  752;  Child  v.  Morley,  8  Term  R.  terbemj  v.  Jackson,  15  Bradw.  27 \ 

610.  ^Bloomer  \.  Denman,   12  111.240; 

^CritzerY.  McConnel,  15  111.  172;  Cabot  v.  Haskins,  3  Pick.  83. 

Trumbell  v.  Campbell,  3  Gilm.  502;  *  Bristoio  v.  Lane,  21  111.  194;  Ball 

Hall  V.  Carpen,  27  111.  386;  Carpen  v.  Benjamin,  56  111.  105:  Lis.  Co.  v. 

V.  Hall.29m.  512;  Aldersonv.  Ennor,  Olcoff,  97  111.  439;  Steel  v.  Clark,  17 

45  111.  128;  Allen  v.  Stenger,  74  111.  111.  471. 
119;  Bloomer  v.  Denman,12  111.  240; 


76  ASSUMPSIT. 

a  plea  of  trespass  on  the  case  on  promises;  (*)  for  tliat,  etc.,  (insert  declar- 
ing part  a)id  conclude)  to  the  damage  of  the  plaintiff  of dollars;  and 

therefore  he  brings  his  suit,  etc. 

E.  F.,  Attorney  for  Plaintiff. 

(Add  copy  of  instrument,  or  account  sued  on.) 

It  is  the  uniform  practice  to  place  the  ad  damnum  at  the 
end  of  the  declaration,  and  then  it  applies  to  each  of  the  counts 
which  precede  it.     It  is  not  necessary  to  add  it  to  each  count.' 

No.  25.    Indebitatus  assumpsit. 

(This  count  may  be  used  in  any  of  the  following  cases,  by  inserting  in  the  brackets  the 
grounds  of  action.) 

In  the Court. 

Term,  18—. 

State  of  Illinois,  ) 

County  of ,      )  set.     A.  B.,  plaintiff,  by  E.  F.,  his  attorney,  complains 

of  C.  D.,  defendant,  of  a  plea  of  trespass  on  the  case  on  promises:   For  that 

whereas  the  defendant,  on  the day  of ,  in  the  year  18 — ,  in  the 

county  aforesaid,  was  indebted  to  the  plaintiff  in  the  sum  of dollars, 

for  (*)  {here  state  the  subject-matter  of  the  debt,  as  in  the  follounng  counts, 
and  proceed  as  follows:)  and  being  so  indebted,  the  defendant,  in  consider- 
ation thereof,  then  and  there  promised  the  plaintiff  to  pay  him  the  said  sum 
of  money,  on  request.  Yet  the  defendant,  though  requested,  has  not  paid 
the  same,  or  any  part  thereof,  to  the  plaintiff,  but  refuses  so  to  do;  to  the 

damage  of  the  plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc. 

E.  F.,  Attorney  for  Plaintiff. 

I.     Goods  sold  and  delivered. 

(Insert  in  the  brackets  in  form  No.  25,  after  the  (*),  the  following :)  "  goods, 
chattels  and  effects  before  that  time  sold  and  delivered  by  the  plaintiff  to 
the  defendant,  at  his  request." 

II.     Goods  bargained  and  sold, 

(Insert  in  form  No.  25 :)  "  goods,  chattels  and  effects  before  that  time 
bargained  and  sold  by  the  plaintiff  to  the  defendant,  at  his  request." 

III.     Labor  and  services. 

(Insert  in  form  No.  25 ;)  "  the  labor  and  services  of  the  plaintiff,  by  him 
before  that  time  done  and  bestowed  in  and  about  the  business  of  the  defend- 
ant, at  his  request." 

rv.     Worlc  and  materials. 

(Insert  inform  No.  25 :)  "  work  before  that  time  done,  and  materials  for 
the  same  furnished,  by  the  plaintiff  for  the  defendant,  at  his  request." 

'  E.  B.  Co.  V.  Wills,  140  111.  614. 


ASSUMPSIT.  77 

V.    Money  lent. 

{Insert  inform  No.  S5 :)  "  money  before  that  time  lent  by  the  plaintiff  to 
the  defendant,  at  his  request." 

VI.    Honey  expended. 

{Insert  inform  No,  25 :)  *'  money  before  that  time  paid  and  expended  by 
the  plaintiff  for  the  use  of  the  defendant,  at  his  request." 

vn.    Money  received. 

{Insert  in  form  No.  25 :)  "  money  before  that  time  received  by  the  defend- 
ant, for  the  use  of  the  plaintiff." 

VIII.     Interest. 

{Insert  in  form  No.  25 ;)  "  interest  on  divers  sums  of  money  before  that 
time  forborne  by  the  plaintiff  to  the  defendant,  at  his  request,  for  the  divers 
spaces  of  time  before  then  elapsed." 

IX.    Account  stated. 

{Insert  in  form  No.  25 :)  "  money  found  to  be  due  from  the  defendant  to 
the  plaintiff,  upon  an  account  then  and  there  stated  between  tliem." 

X.  Board  and  lodging. 

{Insert  in  form  No.  25 :)  "  the  use  and  occupation  of  certain  rooms  and 
furniture  of  the  plaintiff,  before  that  time  used  and  enjoyed  by  the  defend- 
ant, at  his  request;  and  for  meats,  drinks  and  attendance,  and  other  neces- 
saries and  goods  by  the  plaintiff  before  that  time  fovmd  and  provided  for 
the  defendant,  at  his  request." 

XI.  Hire  of  horses,  etc. 

{Insert  in  form  No.  25 :)  "  the  use  and  hire  of  horses,  carriage  and  goods 
by  the  plaintiff  before  that  time  let  to  the  defendant,  at  his  request,  and  by 
him  accordingly  had  and  used." 

XII.     Stabling  and  keeping  horses,  etc. 

{Insert  in  form  No.  25  :)  "  horsemeat,  stabling,  care  and  attendance  by 
the  plaintiff  before  that  time  provided  and  bestowed  in  and  about  the  feed- 
ing and  keeping  of  divers  horses,  mares,  geldings  and  cattle,  for  the  de- 
fendant, at  his  request." 

XIII.     Necessaries. 

{Insert  in  form  No.  25  :)  '•  meat,  drink,  washing,  lodging,  attendance  and 
other  necessaries  and  goods  before  that  time  found  and  provided  by  the 
plaintiff  for  the  defendant,  at  his  request." 

XIV.    Physician's  bill. 

{Insert  inform  No.  25  :)  "  medical  attendance,  advice  and  medicines  be- 
fore that  time  given  and  provided  by  the  plaintiff  to  and  for  the  defendant, 
at  his  request." 


78  ASSUMPSIT. 

XV.    Attorney's  hill. 

(Insert  inform  No.  So  :)  "  the  work,  care,  diligence,  journeys  and  attend- 
ance of  the  plaintiff,  by  him  before  that  time  performed  and  bestowed,  as 
the  attorney  and  solicitor  of  and  for  the  defendant,  at  his  request,  and  for 
fees  due  to  the  plaintiff  in  respect  thereof,  and  for  materials  and  necessary 
things  by  the  plaintiff  provided  in  and  about  the  said  work  for  the  defend- 
ant, at  his  request." 

XVI.     Warelioiise  room,  etc. 

{Insert  in  form  No.  25:)  "  work  done  by  the  plaintiff,  and  warehouse 
room  by  him  found  and  provided,  in  and  about  the  stowing,  keeping  and 
taking  care  of  certain  goods  before  then  stowed,  kept  and  taken  care  of  by 
the  plaintiff,  in  certain  warehouses  and  premises  of  the  plaintiff,  for  the  de- 
fendant, at  his  request." 

No.  26.    Common  counts,  consolidated. 

{Commence  as  in  No.  25,  ante,  page  76.)  For  that  whereas  the  defendant, 
on  the day  of  ,  in  the  year  18 — ,  in  the  county  aforesaid,  was  in- 
debted to  the  plaintiff  in  the  sum  of  dollars,  for  goods,  chattels  and 

effects  before  that  time  sold  and  delivered  by  the  plaintiff  to  the  defend- 
ant, at  his  request;  and  in  the  like  sum  for  goods,  chattels  and  effects  be- 
fore that  time  bargained  and  sold  by  the  plaintiff  to  the  defendant,  at  his 
request;  and  in  the  like  sum  for  work  and  services  before  that  time  done 
and  bestowed,  and  materials  for  the  same  work  furnished,  by  the  plaintiff 
for  the  defendant,  at  his  request;  and  in  the  like  sum  for  money  before  that 
time  lent  by  the  plaintiff  to  the  defendant,  at  his  request;  and  in  the  like 
sum  for  money  before  that  time  paid  and  expended  by  the  plaintiff  for  the 
use  of  the  defendant,  at  his  request;  and  in  the  like  sum  for  money  before 
that  time  received  by  the  defendant  for  the  use  of  the  plaintiff;  and 
in  the  like  sum  for  interest  on  divers  sums  of  money  before  that  time 
forborne  by  the  plaintiff  to  the  defendant,  at  his  request,  for  divers  spaces 
of  time  before  then  elapsed;  and  in  the  like  sum  for  money  found  to  be 
due  from  the  defendant  to  the  plaintiff,  on  an  account  then  and  there 
stated  between  them;  and  being  so  indebted,  the  defendant,  in  considera- 
tion thereof,  then  and  there  promised  the  plaintiff  to  pay  him,  on  request, 
the  several  sums  of  money  so  due  to  him  as  aforesaid.  (*)  Yet  the  defend- 
ant, though  requested,  has  not  paid  the  same,  or  either  of  them,  or  any 
part  thereof,  to  the  plaintiff,  but   refuses  so  to  do;  to  the  damage  of  the 

plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc. 

E.  F.,  Attorney  for  Plaintiff. 

No.  27.     Common  counts  condensed. 

{Commence  as  in  No.  25,  ante,  and  then  proceed:)  For  that  whereas, 
the  defendant,  at,  etc.,  on  etc.,  was  indebted  to  the  plaintiff  in  the  sum 

of  dollars,  for  the  price   and  value   of  goods  then  and  there  sold 

and  delivered  by  the  plaintiff  to  the  defendant,  at  his  request;  and  in  the 
sum  of dollars,  for  the  price  and  value  of  work  then  and  there  done 


ASSUMPSIT.  79 

and  materials  for  the  same  provided  by  the  plaintiff  for  the  defendant  at 

his  request;  and  in  the  sum  of dollars  for  money  then  and  there  lent 

by  the  plaintiff  to  the  defendant,  at  his  request;   and  in  the  sum  of 

dollars,  for  money  then  and  there  paid  by  the  plaintiff  for  the  use  of  the 

defendant  at  his  request,  and  in  the  sum  of dollars  for  money  then 

and  there  had  and  received  by  the  defendant  for  the  use  of  the  plaintiff; 
and  in  the  sum  of dollars,  for  money  found  to  be  due  from  the  de- 
fendant to  the  plantiff,  on  an  account  then  and  there  stated  between  them; 

and  in  the  sum  of dollars,  for  interest  on  divers  sums  of  money  then 

past  due  from  the  defendant  to  the  plaintiff;  and  whereas,  the  defendant, 
afterward,  on,  etc.,  in  consideration  of  the  premises  respectively,  then  and 
there  promised  to  pay  the  said  several  sums  of  money,  respectively,  to  the 
plaintiff  on  request,  yet  he  has  disregarded  his  promises  and  has  not  paid 
the  said  several  sums  of  money,  or  any  or  either  of  them,  or  any  part 
thereof,  although  often  requested  so  to  do;  to  the  damage  of  the  plaintiff 
of dollars,  and  therefoi'e  he  brings  his  suit,  etc. 

E.  F.,  Attorney  for  Plaintiff. 
{Add  copy  of  (xccount  sued  on.) 

The  joinder  in  one  count  of  all  the  common  counts  has  been 
in  general  practice  in  the  English  courts,  and  by  most  of  those 
in  the  American  states.  The  practice  is  not  only  sanctioned, 
but  commended  by  the  ablest  jurists.' 

Where  the  declaration  alleges  a  debt  for  work  done,  and  a 
debt  for  goods  sold,  etc.,  though  with  only  one  general  prom- 
ise to  pay,  the  statement  of  each  debt  is  regarded  as  a  separate 
count;  but  where  there  is  only  one  statement  of  debt,  though 
founded  on  several  considerations,  it  is  one  count  only.' 

Several  causes  of  action  may  be  joined  in  one  count,  and  it 
will  not  be  necessary  to  prove  all  the  causes  alleged.  Eecov- 
ery  may  be  had  ji?r<?  tanto?  Under  an  indebitatus  count  the 
plaintiff  may  recover  what  may  be  due  to  him,  although  no 
specific  price  or  sum  was  agreed  upon;  and  therefore  it  has 
been  observed  that  the  quantum  meruit  and  quantum  valebant 
counts  are  unnecessary,  and  should  in  many  cases  be  omitted, 
to  prevent  unnecessary  prolixity  and  expense." 

A  count  for  goods  sold  and  delivered,  which  avers  that  a 
party  promised  to  pay  on  request,  the  declaration  concluding 

^Perdicaris    v.     Bridge    Co.,     5  ^  Webbei'v.  Tiville,  2  Saund.  122; 

Dutch.  (N.  J.)  367;  Bailey  v.  Free-  2  Black  910;  Bailey  v.  Freeman,  4 

man,  4  Johns.  284.  Johns.    284. 

^  Morse   v.  James,    11  Meeson  &  *  1  Chit.  PI.   301;  Luviber  Co.  v. 

Welsby,  831.  Jenks,  20  Bradw.  369. 


80  ASSUMPSIT. 

with  the  general  breach  of  non-payment,  is  good,  without 
averring  a  special  request.' 

Where  there  is  a  subsisting  unexecuted  agreement,  i7idehi- 
tatus  assiimpsit  will  not  lie.^  Indehitatus  asstimpsit  will  not 
he  where  the  agreement  is  not  for  the  payment  of  money,  but 
for  the  doing  of  some  other  thing;  the  count  in  such  case  must 
be  special.' 

It  will  lie  to  recover  the  stipulated  price  due  on  a  special 
contract,  where  the  contract  has  been  completely  executed, 
so  that  only  a  duty  to  pay  the  money  remains.*  But  it 
will  not  lie  where  the  claim  isi  upon  a  warranty  of  a  chattel.^ 

The  purchase  money  of  land  sold  and  conveyed  may  be  re- 
covered under  the  appropriate  common  count."  A  promissory 
note  may  be  given  in  evidence  under  the  money  counts  in  an 
action  by  the  indorsee  against  the  maker,'  and  in  an  action 
against  the  indorser; '  so  may  a  check  on  a  bank  in  which  the 
drawer  has  no  funds,  in  an  action  against  the  drawer,  without 
showing  presentment." 

A  coupon  is  proper  evidence  under  the  common  money 
counts."     Bills   of   exchange,"  and   notes   payable  in  specific 

.  1  Warner  v.    WeUli,  13  111.  674.  III.  62;  Bisliop  v.  Batver,  62  111.  188; 

2  Stollings  v.  Sappington,  8  Mo.  Mayer  v.  Mitchell,    59  111.  App.  26; 

118;   Chambers  v.  King,  8  Mo.  517;  Sands  v.  Potter,  59111.  App,  206. 

Wiltv.  Ogden,  Id  Johns.  56:  Shepard  ^Russell  v.   Gilmore,   54  111.    147; 

V.  Palmer,  6  Conn.  100;  Cast  v.  Roff,  Burnham  v.  Roberts,  70  III.  19. 

26  111.  452.  « Elder  v.  Hood,  38  111.  533. 

« Perkins  v.  Hart,  11  Wheat.  237;  ''Bank  v.  Myer,  7  Halst.  141;  GU- 
Jewel  V.  Schroeppel,  4  Cowen  564;  more  v.  Nouiand,  26  111.  200;  3Iur- 
Wait  V.  Berry,  12  Wend.  377;  chie  v.  Peck,  57  111.  App.  396. 
Throop  V.  Sherwood,  4  Gilm.  92;  ^Hodges v.  Holland,  16  Pick.  395; 
Burnham  v.  Roberts,  70  111.  19;  Bank  v.  Hurd,  12  Mass.  172;  Ells- 
Myers  V.  Schemp,  67  111.  469;  Rollins  worth  v.  Breioer,  11  Pick.  316;  Oood- 
V.  Iniffy,  14  Bradw.  69.  vnn  v.  Morse,  9   Met.  (Mas  .)  278; 

*Lane  v.  Adams,  19  111.  167;  Tun-  Moore  v.  Moore,  9  Met.  (Mass.)  417. 

nison-v.Fi€ld,2\\\\.\0%;Eggleston  ^  Cushing    v.  Gore,  15    Mass.    69; 

V.  Buck,  24  111.  263;  Elrod  v.  Town,  Ellis  v.  Wheeler,  3  Pick.  18;  Ball  v. 

53111.  369;  Thomas  v.    Caldwell,  50  Allen,  15  Mass.  433;  Howes  v.  Au^- 

111.  138;  Adlard  v.  Middoon,  45  111.  tin,  35  111.  396. 

193;   Pickard  v.    Bate^,  38  111.  40;  ^^  Johnson  v.  Stark  Co.,  24:  111.75; 

Elder  v.  Hood,  38  III.  533;  Combs  v.  Supervisors  v.  Hubbard,  45  III.  139. 

Steele,  80    111.  101;  Fowler  v.  Deak-  "  i2.  R.  Co.   v.  Neill,   16  111.  269; 

man,  84  111.  130;  Bank  v.  Hart,  55  Brower  v.  Rupert,  24  111.  183. 


ASSUMPSIT.  81 

articles,  are  properl}-  admissible  under  the  money  counts.'  An 
action  of  assumpsit  for  work  done  can  not  be  maintained 
without  proof  that  such  work  was  done  at  the  request  of  the 
defendant,  and  for  his  benefit.^  And  in  some  cases,  although 
the  original  agreement  has  not  been  strictly  performed  by  the 
plaintiff,  yet  if  the  defendant  avails  himself  of,  and  derives  a 
benefit  from,  the  work  done,  he  will  be  liable  upon  a  common 
count."  The  common  counts  can  not  be  resorted  to  where 
there  is  a  special  contract,  and  the  breach  of  the  contract  is 
the  gravamen  of  the  action.  In  such  case  the  plaintiff  must 
declare  specially.*  But  where  the  contract  has  been  com- 
pletely executed,  so  that  onl}'^  a  duty  to  pay  the  money  remains, 
a  recovery  may  be  had  under  the  appropriate  common  counts, 
in  indebitatus  assumpsit.'  And  in  case  of  a  part  performance 
where  the  performance  of  the  remaining  provisions  of  the  con- 
tract has  been  waiv^ed  or  prevented  and  the  work  performed 
has  been  accepted,  a  recovery  maybe  had  of  the  contract  price 
for  the  services  performed.' 

Money  had  aud  received. —  Under  this  count  the  plaintiff 
may  prove  the  receipt  of  bank-notes  by  the  defendant ; '  or 
promissory  notes ;  *  or  credit  in  account,  in  the  books  of  a 
third  person ; '  or  a  mortgage  assigned  to  the  defendant  as 
collateral  security,  and  under  which  he  has  acquired  the  prop- 

iCrandoiv.BradZe?/,  7  Wend.  311;  Bernadotte,  53    111.    369;    Bank    v. 

Pierce  v.  Crafts,  12  Johns.  90.  Hart,  55  111.  62;   Combs  v.  Steel,  80 

*  1  Black.  247.  111.  101;  Fowler  v.  Deakman,  Si  111. 
^Merrill  v.  R.  R.  Co.,  16   Wend.  130;   Bishop  v.  Bauer,  62   111.   188 

586;  Cemetery  v.  Weidenmann,  139  Rollins  v.  Duffy,   14    111.  App.   69 

111.  68;  Butts  V.  Huntley,  1  Scam.  410;  Cemetery  v.  Weidenmann,  139  111.  67 

Smith  V.  Loicell,  8  Pick.  178;  Olm-  Preston  v.  Smith.  156  111.  363;  Steic- 

stead  V.  Beale,  19  Pick.  528.  art  v.  Carbray,  59  111.  App.  397. 

*  Russell  V.   Gilmore,  54  111.   147;  ^  Cemetery  v.  Weidenmann,  139  III. 
Rollins  V.  Duffy,  14  111.  App.  69.  68;    City  of  Chicago  v.  Sexton,  115 

'  Throop  V.  Sherwood,  4  Gilm.  92:  111.  230;  Bishop  v.  Bauer,  62  111.  188. 

Lane  v.  Adams,  19  111.  167;  Tunni-  '  Pickard  v.    Banks,  13  Eaat  20; 

son  V.  Field,  21  111.  109;  Holmes  v.  Lowndes  v.  Andersoti,  13  East    130; 

Stummel,  24  111.  370;    Eggleston   v.  Mason  v.  Waite,  17  Mass.  560. 

Buck,  24  III  2Q2;  Walker  V.  Brown,  «  Tut  tie  v.  Mayo,    7    Johns.    132; 

28  111.  378;  Pickard  v.  Bates,  38  111.  Fairbanks  v.  Blackington,  9  Pick. 

40;  Elder  v.  Hood,  38  111.  533;  Ad-  93. 

lard  V.  Muldoon,  45  111.  193;  Russell  »3  Camp.  199. 

V.  Gilmore,  54    111.  147;    Elrod   v.  ... 
6 


82  ASSUMPSIT. 

erty ; '  and  where  money  has  been  delivered  to  the  defendant 
for  a,  particular  purpose,  to  which  he  has  refused  to  apply  it, 
he  can  not  apply  it  to  an}^  other,  but  it  may  be  recovered  by 
the  depositor,  under  the  count  for  money  had  and  received." 
If  it  was  placed  in  his  hands  to  be  paid  over  to  a  third  person, 
which  he  agreed  to  do,  such  person,  assenting  thereto,  may 
sue  for  it,  as  money  had  and  received  to  his  use ;  ^  but  if  the 
defendant  did  not  consent  so  to  appropriate  it,  it  is  otherwise, 
there  being  no  privity  between  them  ;  and  the  action  will  lie 
only  by  him  who  placed  the  money  in  his  hands/  The  count 
for  money  had  and  received  may  also  be  supported  by  evi- 
dence that  the  defendant  obtained  the  plaintiff's  money  by 
fraud,  or  false  color  or  pretense.* 

And  genera IhT"  speaking,  whenever  one  person  has  in  his 
hands  money  equitably  belonging  to  another,  that  other  per- 
son may  recover  it  in  assumpsit  under  the  count  for  money 
had  and  received;'  but  the  plaintiff  must  show  a  just  as  well 
as  a  legal  right  to  the  money.'  Assumpsit  for  money  had  and 
received  lies  to  recover  money  paid  on  an  execution  issued  on 
a  judgment'  subsequently  reversed.'  Where  a  contract  is 
rescinded,  assumpsit  for  money  had  and  received  will  lie  to  re- 
cover monej'  paid  thereon.""  Assumpsit  for  money  had  and 
received  lies  to  recover  money  paid  under  an  original  igno- 
rance or  a  subsequent  forgetful ness  of  facts." 

An  action  for  money  due  under  a  contract  by  which  plaint- 

^  Gilchrist     v.     Cunningham,      8      ley  v.  Sage,  15  Conn.  52;  Taylor  v. 
Wend.  641.  Taylor,  20  111.  650;  McLain  v.  Wat- 

*  Williams  v.  Everett,  U  East  582;      kins,  43  111.  24. 

Parker  v.  Fisher,  39  111.  164.  '2  Burr  1012;   Doug.  138;   Straton 

3  Cora.    Dig.    205,   206;  Parker  v.  v.  Bast  all,  2  T.  R.  370. 

FUher,  39  111.  164.  »  Wisner  v.  Bulkley,  15  Wend.  321; 

*  Williams  v.  Everett,  14  East  582;  Raun  v.  Reynolds,  18  Cal.  273. 
Hall    V.    Marston.    17     Mass.    575;  ^ Stui-ges  v.  Allis,  10  Wend.    354; 
Neill  V.  Chessen,  15  111.  App.   266;  Maghee  v.  Kellogg,  24    Wend.   32; 
Maxicell  v.  Longnecker,  82  111.  308.  Clarkv.Pinney,Q  Cow.  297;  Steveris 

5  1  Stephens'  Nisi  Prius,  335;  Bliss  v.  Fitch,  11  Met.  248. 

V.  Tliompson,  4  Mass.  488:   Lyon  v.  ^^  Lney  x.  Bundy, 9 'i^ .  H.  2Q8;  Rich- 

Annable,   4  Conn.  350;  Drennan  v.  ards  v.  Allen,  5  Shep.  296. 

Bunn,  124  lU.  175.  ^^  Kelly  v.   Solan,  9  M.  &  W.  54; 

^  Hall  V.  Marston,  17  Mass.  575;  Pa h A;  v.  PaWard,  7  How.  (Miss.)  371. 
Claflin  V.  Godfrey,  21  Pick.  1;  Haw- 


ASSUMPSIT.  83 

iff  conveyed  land  to  the  defendant  with  the  agreement  that 
he  was  to  receive  all  over  a  certain  amount,  which  defendant 
should  receive  when  he  should  sell  it,  can  be  maintained  under 
a  declaration  containing  the  common  counts  for  money  had 
and  received/ 

Money  paid  by  one  to  another,  by  a  mutual  mistake  of  facts 
in  respect  to  which  both  were  equally  bound  to  inquire, 
may  be  recovered  back  in  assumpsit,  under  the  count  for 
money  had  and  received.^  And  under  section  29,  chapter  110, 
of  the  "  Practice "  act,  such  a  demand  may  be  set  off  by  a 
defendant  against  the  amount  claimed  to  be  due  the  plaintiff/ 

Where  money  is  paid  by  one  party  to  another  for  a  given 
article,  assumed  to  be  sold,  but  the  seller  delivers  to  the  pur^ 
chaser  only  a  w^orthless  imitation  of  that  article,  there  is  a 
legal  fraud,  and  an  action  for  money  had  and  received  will  lie 
for  the  money  thus  paid,  for  which  nothing  has  been  received.* 
Where  money  is  paid  under  duress,  it  may  be  recovered  as 
money  received  to  the  use  of  the  person  paying.* 

An  action  for  money  had  and  received  may  be  maintained 
for  a  share  of  the  profits  of  a  single  joint  enterprise,  under  an 
agreement  that  such  profits  should  be  equally  divided,  Avhere 
the  transaction  is  completed  and  the  profits  received  by  the 
defendants.'  The  action  for  money  had  and  received,  lies  for 
money  accruing,  due  to  the  plaintiff,  under  the  provisions  of  a 
statute  w^here  there  is  no  restriction  to  any  other  particular 
remedy.'  A  sub-contractor  can  not  recover  under  the  com- 
mon counts  for  goods  sold  and  delivered,  or  for  money  had 
and  received.* 

Money  paid  and  expended. — Where  one  person  pays  the 
indebtedness  of  another  at  his  request,  an  action  will  lie  for 

^Knoblcchx.  Romeis,  34  111.  App.  Coal  Co.,  79  111.    121;  Pemberton  v. 

577.  Williams,  87  111.  15;   see  Elston  v. 

«  Wolf  V.  Beaird,  123  111.  585.  Chicago,    40     111.     514;     Stover   v. 

^Assurance  Co,  v.  Scanmion,  133  Mitchell,  45    111.  213;    Conkling  v. 

111.  627.  City,  132  111.  420. 

*  Drennan  v.  Bunn,  124  111.  175.  «  Gottschalk  v.  Smith,  156  111.  377. 

6  Bradford  v,  Chicago,  25  111.  411;  ''  Sangamon  v.  Springfield,  63  III. 

La  Salle  v.  Simmon,   5  Gilm.  513;  66. 

Falls  V.  Cairo,  58  111.   403;  Harvey  « Ice  Co.  v.  Murphy,   59  111,  App. 

V.  Olney,  42  111.  336;  R.  R.    Co.  v.  39. 


84  ASSUMPSIT. 

money  paid.'  The  action  for  money  paid  does  not  lie  where 
there  is  no  undertaking,  express  or  implied,  to  pay.' 

The  ireneral  rule  is  that  to  sustain  the  count  there  must  have 
been  an  actual  payment  upon  request,  or  a  payment  with  sub- 
sequent approval.'  Under  certain  circumstances,  however,  the 
law  will  imply  both  the  request  and  promise,  as  where  the 
plaintitf  has  been  compelled  to  pay  money  that  the  defendant 
was  legally  bound  to  pay.* 

Where  several  persons  agree  to  contribute  equally  to  certain 
expenditures  and  one  advances  more  than  his  share,  the  excess 
is  so  much  paid  for  the  use  of  the  others,  and  may  be  recov- 
ered with  interest;^  and  so  when  one  of  two  joint  purchasers  is 
compelled  to  pay  money  for  the  other  upon  the  joint  indebted- 
ness.® A  surety,  on  payment  of  the  debt,  will  be  entitled  to  an 
action  against  his  principal  upon  an   implied    assumpsit.' 

In  case  a  broker,  employed  to  make  sale  of  grain  for  future 
delivery,  advances  money  to  buy  the  grain  to  fill  the  contract, 
such  advance  will  be  regarded  as  money  advanced  upon  the 
implied  request  of  the  principal,  and  therefore  may  be  recov- 
ered under  the  common  counts.* 

Work  and  materials — Quantum  meruit. — In  an  action  for 
work  and  labor,  the  plaintiff,  in  the  absence  of  a  price  fixed  by 
contract,  is  entitled  to  recover  what  his  services  were  reason- 
ably worth; '  and  where  one  performs  services  upon  a  parol 
contract,  which,  being  within  the  statute  of  frauds,  can  not  be 
enforced,  he  may  recover  the  value  thereof  upon  a  quantum 
meruiV 

Where  work  is  done  in  expectation  on  both  sides  that  it  is  to 

^  Allen  V,  Breusing,  32  111.  505;  R.  ^  Buckmaster  v.  Grundy,  3  Gilm. 

R.  Co.  V.  Fackney,  78  111.  116.  626. 

^Briscoe   v.    Power fs,  64    111.    72;  « Sarrey  v.  Drew,  82  111.  606. 

Durant  v.  Rogers,  71  111.  1?1.  "f  Junker  v.  Rush,  136  111.  179. 

^Fowler  v.  Hall,  7  111.  A  pp.    332;  ^  Perin  v.  Parker,  126  111.  201. 

2Greenl.  Ev.,§113.  ^ Frazer    v.    Gregg,  20    111.    299; 

*  Jeffries  v.  Gurr,  2  B.  &  Ad.  833;  Lockwood  v.  Onion,  56  111.    506;  R. 

Exall   V.  Partridge,    8  T.    R.    308;  R.  Co.  v.  Wilcox,  66  111.  417. 

F&wler  V.  Hall,  7  111.  App.  332;  Doty  ^"^  Steel  Works  v.  Atkinson,  68  111. 

V.  Wilson,  14  Johns.  378;    Kenan  v.  421;  Folliott  v.  Hunt,  21  111.  654. 
Hallou'ay,  16  Ala.  54;  Hatch  v.  Pur- 
cell,  1  Foster  544. 


ASSUMPSIT.  85 

be  paid  for,  there  may  be  a  recovery  upon  an  implied  promise,' 
Where  work  is  fully  performed  under  a  special  agreement,  but 
not  precisely  in  accordance  with  the  contract,  there  may  be  a 
recover}'"  upon  a  quantuin  meruitj^ 

Where  there  is  a  sealed  contract  to  perform  particular  work, 
and  the  contractor  performs  in  part,  but  is  prevented  by  the 
other  party  from  completing  it,  the  value  of  the  work  done  and 
materials  furnished  by  him  under  the  contract  must  be  fixed 
by  its  stipulations  so  far  as  they  can  be  applied,  and  he  can  not 
proceed  upon  a  quantum  meruit  in  disregard  of  the  contract.' 
Where  one  erects  a  building  for  a  county  for  which  he  receives 
bonds  which  are  afterward  repudiated  by  the  county,  the  con- 
tract price  may  be  recovered  upon  the  common  counts  in  as- 
sumpsit/ 

No.  SS.     Quantum  meruit  count. 

{Commence  as  in  No.  25,  ante,  page  76. )    For  that  whereas  on  the 

day  of ,  in  the  year  18 — ,  in  the  county  aforesa'd,  in  consideration  that 

the  plaintiff,  at  the  request  of  the  defendant,  had  before  that  time  done  and 
bestowed  certain  work  and  services  in  and  about  the  business  of  the  defend- 
ant, and  for  him,  {or  insert  any  other  subject-matter  of  debt,  as  in  tlie 
forms  under  No.  25,  ante,  except  goods  sold  and  delivered,  or  goods  bar- 
gained and  sold,  and  proceed  thus:)  the  defendant  promised  the  plaintiff  to 
pay  him,  on  request,  so  much  money  as  he  therefor  reasonably  des  rved  to 
have;  and  the  plaintiff  avers  that  he  then  and  there  reasonably  deserved  to 

have  therefor  the  sum  of  dollars,  whereof  the  defendant  then  and 

there  had  notice.  Yet  the  defendant,  though  requested,  has  not  paid  to  the 
plaintiff  the  said  sum  of  money,  or  any  part  thereof,  but  refuses  so  to  do; 

to  the  damage  of  the  plaintiff  of dollaus,  and  therefore  he  brings  his 

suit,  etc. 

No.  29.     Quantum  valebant  count. 

{First,  indebitatus  count,  as  ante.  No.  25.  page  76.)  And  whereas,  also,  on 
the  day  last  aforesaid,  in  the  county  aforesaid,  in  consideration  that  the 
plaintiff,  at  the  request  of  the  defendant,  had  before  that  time  sold  and 
delivered  {or  "bargained  and  sold,"  as  the  case  may  be,)  to  the  defendant 
divers  other  goods,  chattels  and  effects,  the  defendant  promised  the  plaint- 
iff to  pay  him,  on  request,  so  much  money  as  the  la.t-mentioned  goods, 

^Byers\.  Thompson,  66  111.  421.  v.  R.  R.  Co.,  26  111.  189;  Holmes  v. 

5  Taylor  v.  Renn,  79  111.  181;  Eg-  Stummel,  24  111.  370;  Dobbins  v.  Hig- 

gleston  v.  Buck,  24  111.  262.  gins,  78  111.  440. 

^Chicago  v.  Sexton,  115  111.  230;  *  Jackson  Co.  v.  Hall,  53  111.  440. 
Folliott  V.  Hunt,  21  111.  654;  Evans 


86  AssuMPaiT. 

chattels  and  <  ffecta,  at  the  time  of  the  sale  and  delivery  (or  "  bargain  and 
sale")  the  eof  as  aforesaid,  were  reasonably  worth;  and  the  plaintiff  avers 
that  the  same  were  then  and  there  reasonably  worth  the  further  sum  of 

dollars,  whereof  the  defendant,  on  the  day  last  aforesaid,  there  had 

notice.  Yet  the  defendant,  though  requested,  has  not  paid  to  tiie  plaintiff 
the  last-menti  jned  sum  of  money,  or  any  part  thereof,  but  refuses  so  to  do; 

to  the  damage  of  the  plaintiff  of dollars,  and  therefore  he  brings  hia 

suit,  etc. 

As  the  plaintiff  may  recover  on  the  indebitatus  count,  though 
no  contract  for  a  specific  price  be  proved,  the  quantum  meruit 
or  quantum  valebant  count  seems  necessary,  and  where  the 
declaration  is  otherwise  long,  should  be  omitted.' 

The  quantum,  valebant  count  is  not  in  practice  adopted,  ex- 
cept when  the  demand  is  for  goods  sold  and  delivered,  or  bar- 
gained and  sold,  and  the  quantum  meruit  count  seems  in  all 
cases  sufficient.^ 

COMMON  COUNTS — RELATING   TO    THE    CHARACTER     IN     WHICH     THE 
PLAINTIFF    SUES    OB   THE     DEFENDANT    IS     SUED. 

No.  30.    By  surviving  partner,  on  promises  to  both  partners. 

In  the Court. 

Term,  18—. 

State  of  Ilunois,  ) 
County  of ,     f   set.     A.  B.,  plaintiff,  by  G.  H.,  his  attorney,  com- 
plains of  C.  D.,  defendant,  of  a  plea  of  trespass  on  the  case  on  promises: 
For  that  whereas  the  defendant,  in  the  lifetime  of  one  E.  F. ,  since  deceased, 

to  wit,  on  the day  of ,  in  the  year  18 — .  in  the  county  aforesaid, 

was  indebted  to  the  plaintiff  and  the  said  E.  F.  in  the  sum  of  -  dollars, 
for  the  work  and  services  of  the  plaintiff  and  the  said  E.  F.,  by  them  before 
that  time  done  and  bestowed  for  the  defendant,  at  his  request  {any  other 
demand,  as  "  for  goods  sold,"  etc.,  is  to  be  described  in  the  same  manner), 
and  being  so  indebted,  the  defendant,  in  consideration  thereof,  then  and 
there  promised,  etc.  {laying  the  promise  to  both  the  partners).  Yet  the  de- 
fendant, though  requested,  has  not  paid  the  said  sum  of  money,  or  any  part 
thereof,  to  the  plaintiff  and  the  said  E.  F.,  or  either  of  them,  but  refuses  to 

pay  the  same;  to  the  damage  of  the  plaintiff  of  dollars,  and  therefore 

he  brings  his  suit,  etc. 

If  deemed  expedient,  counts  may  be  added  on  promises  to 
the  survivor.  See  forms  of  declarations  by  executors  and 
administrators,  ^c>«^.     The  administrator  of  a  deceased  part- 

1  2  Chit.  PI.  38,  note  a;  Webber  v.  « 3  Chit.  PI.  38,  note  b. 

Tivill,  2  Saund.  122,  note  2. 


ASSUMPSIT.  87 

ner  should  not  join  with  the  surviving  partner  in  a  suit  to  re- 
cover a  debt  due  to  the  partnership,'  It  would  be  untechnical 
in  a  declaration  merely  to  describe  a  deceased  partner  as  a  late 
partner,  without  averring  his  death.^  But  the  omission  of  the 
words,  "  since  deceased,"  in  a  declaration,  is  no  ground  for  de- 
murrer.' 

No.  31.    Against  surviving  partner,  for  work  done. 

In  the Court. 

Term,  18—. 

State  of  Illinois,  {     . 
County  of ,      J       '  A.  B.,  plaintiff,  by  G.  H.,  his  attorney,   com- 
plains of  C.  D.,  defendant,  of  a  plea  of  trespass  on 
the  case  on  promises:    For  that  whereas  the  defendant  and  one  E.  F.,  in 

his  lifetime,  now  deceased,  on  the day  of ,  in  the  year  18 — ,  in  the 

county  aforesaid,  were  indebted  to  the  plaintiff  for  work  and  services  by 
the  plaintiff  before  that  time  done  and  bestowed  for  the  defendant  and  the 
said  E.  F.,  at  their  request  (or  for  any  otiier  matter,  to  he  here  inserted  as 
in  No.  25,  ante,  page  76);  and  being  so  indebted,  the  defendant  and  the  said 
E.  F. ,  in  consideration  thereof,  then  and  there,  in  the  lifetime  of  the  said 
E.  F.,  promised  the  plaintiff  to  pay  him  the  said  sum  of  money,  on  request. 
Yet  though  requested,  the  defendant  and  the  said  E.  F.  have  not,  nor  has 
either  of  them,  ever  paid  to  the  plaintiff  the  said  sum  of  money,  or  any 
part  thereof,  but  they  in  the  lifetime  of  the  said  E.  F.  wholly  refused,  and 
the  defendant  has  ever  since  the  death  of  the  said  E.  F,  refused,  and  still 
refuses,  so  to  do;  to  the  damage,  etc. 

Where  one  of  the  joint  makers  of  a  contract  dies,  his  execu- 
tor or  administrator  is  discharged,  at  law,  and  an  action  can 
be  maintained  only  against  the  survivor.*  The  survivor  can 
not  be  sued  jointly  with  the  executor  of  the  deceased.' 

No.  32.    Husband  and  wife  against  defendant  for  work,  etc.,  by  wife  before 

marriage. 

In  the Court. 

Term,  18—. 

State  of  Illinois,  ) 

County  of ,  j  set.     A.  B.,  and  C,  his  wife,  plaintiffs,  by  G.  H., 

their  attorney,  complain  of  D.  E.,  defendant,  of  a  plea  of  trespass  on  the 
case  on  promises:  For  that  whereas  the  defendant,  while  the  said  C.  was 

sole  and  unmarried,  to  wit,  on  the day  of ,  in  the  year  18 — ,  in 

the  county  aforesaid,  was  indebted  to  the  said  C.  in  the  sum  of dollars, 

for  work  and  services  by  her  before  that  time  done  and  bestowed  in  and 

»  Belton  V.  Fisher,  44  111.  32.  <  Ballance  v.  Samuel,  3  Scam.  380. 

* V. ,  1  Har.  &  Wal.  Conover  \ .  Hill,  76  111.  342. 

108.  6 1  Chit  PI.  50;  Eggleston  v.  Buck, 

«  Large  v.  Attwood,  3  Dowl.  551.  31  111.  254. 


88  ASSUMPSIT. 

about  the  business  of  the  defendant,  and  for  him,  at  his  request  (or  insert 
any  other  subject-matter  of  debt,  as  in  the  forms  under  No.  25,  ante);  and 
being  so  indebted,  the  defendant,  in  consideration  thereof,  then  and  tiiere, 
while  the  said  C.  was  sole  and  unmarried  as  aforesaid,  promised  the  said  C. 
to  pay  her  the  said  sum  of  money,  on  request.  Yet  the  defendant,  though 
requested,  has  not  paid  the  said  sum  of  money,  or  any  part  thereof,  either 
to  the  said  C.  while  she  was  sole  and  unmarried  as  aforesaid,  or  to  the 
plaintiffs,  or  either  of  them,  since  their  intermarriage,  but  refuses  to  pay 

the  same;  to  the  damage  of  the  plaintiffs  of dollars,  and  therefore  they 

bring  their  suit,  etc. 

Whenever  a  wife  joins  in  a  suit  with  her  husband,  her  in- 
terest must  appear.'  In  Illinois,  since  the  passage  of  the  act 
of  February  21,  1861,  entitled  ^' An  act  to  protect  married 
women  in  their  separate  property  ^''  2ifeme  covert  may  sue  alone 
for  her  separate  property,  or  for  the  enforcing  of  any  of  her 
rights,  without  joining  her  husband.  So  far  as  her  separate 
property  is  concerned,  she  is  unmarried,  and  she  may  institute 
suits  even  against  her  husband,  should  he,  contrary  to  her 
wishes,  and  in  contempt  of  her  rights,  unlawfully  interfere.'" 
Such  is  the  law  also  in  Pennsylvania,  and  several  other  states.' 

At  common  law,  for  choses  in  action  due  to  the  wife  before 
marriage,  the  husband  and  wife  must  join.'  It  is  well  settled 
that  the  husband  can  not  sue  alone  upon  a  contract  of  the 
wife  when  sole,  and  before  marriage."  They  must  join  in  all 
actions  upon  bonds,  and  other  personal  contracts,  made  with 
the  wife  before  marriage,  whether  the  breach  was  before  or 
during  the  coverture.* 

No.  33.    Against  husband  and  wife,  for  work  done,  etc.,  for  wife,  before 

marriage. 

In  the Court.  Term,  18—. 

State  of  Illinois,  )     . 

County  of ,      )       '  A.  B.,  plaintiff,  by  G.  H.,  his  attorney,  complains 

of  C.  D. ,  and  E. ,  his  wife,  of  a  plea  of  ti-espass  on  the 

'  Ballance  v.  Samuel,  3  Scam.  383.  ^  Goodyear  v.  Rumbaugh,  13  Penn. 

'Rev.  Stat.  (1893),  806;  Rev.  Stat.  480;  SheidJe  v.  Weishlee,   16  Penn. 

(1895),   855;    Starr  &    Curtis,    1269;  134;  Gilliard  v.   Chesney,  13"  Texas 

Emersonx.  Clayton,  32  111.  493;  R.  337. 

R.  Co.  V.  Dxuin,  52  111.  260;  Beach  MO  Pick.  463. 

V.  Miller,  h\  111.  206;  Burger  x.Bels-  ^Decker  v.  Livingston,  15   Johns. 

ley,  45  111.72;  Chestnut  v.  Chestnut,  479;  Angel  v.  Felton,  8  Johns.  150. 

77  111.  346;  Chicago  v.  McGraic,  75  «1  Chit.  PI.  29:  Decker  v.  Living- 

111.  566.  ston,  15  Johns.  479. 


ASSUMPSIT.  89 

case  on  promises:    For  tliat  whereas  the  said  E.,  while  she  was  sole  and 

unmarried,  to  wit,  on  the day  of ,  in  the  year  18 — ,  in  the  county 

aforesaid,  was  indebted  to  the  plaintiff  in  the  sum  of ,  for  work  before 

that  time  done,  and  materials  for  the  same  furnished,  by  the  plaintiff  for 
the  said  E.,  at  her  request  (or  insert  any  other  subject-matter  of  debt,  as  in 
tJie.  forms  imder  No.  25,  ante);  and  being  so  indebted,  she,  the  said  E.,  in 
consideration  thereof,  then  and  there,  while  she  was  sole  and  unmarried  as 
aforesaid,  promised  the  plaintiff  to  pay  him  the  said  sum  of  money,  on  re- 
quest. Yet  neither  has  the  said  E. ,  while  she  was  sole  and  unmarried  as 
aforesaid,  nor  have  the  defendants  since  their  intermarriage,  nor  has  either 
of  them,  ever  paid  to  the  plaintiff  the  said  sum  of  money,  or  any  part 
thereof,  although  thereto  requested,  but  to  pay  the  same  the  defendants 

refuse;  to  the  damage  of  the  plaintiff  of dollars,  and  therefore  he  brings 

his  suit,  etc. 

la  general,  a  feme  covert  can  not  be  sued  alone  at  common 
law;  and  when  a  feme  sole.,  who  has  entered  into  a  contract, 
marries,  the  husband  and  wife  must  in  general  be  jointly  sued.' 
But  if  d,feme  sole  marries  pending  a  suit  against  her,  the  mar- 
riage need  not  be  noticed  in  the  subsequent  proceedings.  It 
does  not  affect  the  form  of  the  proceedings,  but  the  suit  goes 
on  as  if  no  marriage  had  taken  place.^ 

A  wife  can  not  be  sued  at  law  on  a  note  executed  by  herself 
and  husband  for  land  conveyed  to  the  wife.* 

No.  34.    By  executor,  for  work,  etc.,  on  promise  to  testator. 

In  the Court. 

Term,  18—. 

State  of  Illinois,  ) 

County  of ,     jsct,     A.  B.,  plaintiff,  executor  of  the  last  will  and 

testament  of  E.  F.,  deceased,  complains  of  C.  D.,  de- 
fendant, of  a  plea  of  trespass  on  the  case  on  promises.    For  that,  whereas,  the 

defendant,  in  the  lifetime  of  the  said  E.  F.,  to  wit,  on  the day  of ,  in 

the  year  18 — ,  in  the  county  aforesaid,  was  indebted  to  the  said  E.  F.  in  the 

sum  of dollars,  for  work  before  that  time  done,  and  materials  for  the 

same  furnished  by  the  said  E.  F.  for  the  defendant,  at  his  request  (any  other 
debt,  as  for  goods  sold,  etc.,  is  to  be  described  in  tlie  same  manner);  and  be- 
ing so  indebted,  the  defendant,  in  consideration  thereof,  then  and  there 
promised  the  said  E.  F.  to  pay  him  the  said  sum  of  money  on  request.  Yet 
the  defendant,  though  requested,  has  not  paid  the  said  sum  of  money,  or 
any  part  thereof,  either  to  the  said  E.  F.  in  his  lifetime,  or  to  the  plaintiff 
since  the  death  of  the  said  E.  F.,  but  refuses  to  pay  the  same;  to  the  dam- 
age of  the  plaintiff,  as  executor  as  aforesaid,  of dollars,  and  therefore 

he  brings  his  suit,  etc. 

iChit.  PI.  57;  Angel  v.  Felton,  8  '^  Roosevelt  v.  Dale,  2  Cow.  581. 

Johns.  149.  «  Carpenter  v.  Mitchell,  50  111.  470. 


90  ASSUMPSIT. 

And  the  plaintiff  brings  into  the  court  here  the  letters  testamentary  to 
him  granted,  whereby  it  fully  appears  to  the  court  here  that  the  plaintiff  is 
executor  of  the  said  last  will  and  testament  of  the  said  E.  F.,  deceased, 
and  has  the  execution  thereof,  etc. 

Where  the  plaintiffs  added  profert  of  letters  testamentary 
in  the  following  words,  it  Avas  held  sufficient :  "  And  the  said 
plaintiffs  bring  into  court  here  the  letters  showing  their  qual- 
ifications as  executors." ' 

No.  35.    Additional  count  on  pixunise  to  the  plaintiff  as  executor. 

{First  count  as  in  No.  34,  above.)  And  whereas  also  the  defendant,  in 
the  lifetime  of  the  said  E.  F.,  deceased,  to  wit,  on  the  day  first  aforesaid, 
in  the  county  aforesaid,  was  indebted  to  the  said  E.  F.  in  the  further  sum 

of dollars,  for  other  work  before  that  time  done,  and  materials  for 

the  same  furnished  by  the  said  E.  F.  for  the  defendant,  at  his  request  {any 
other  debt  as  "  for  other  goods,"  etc.,  is  to  be  described  in  like  manner);  and 
being  so  indebted,  and  the  last  mentioned  sum  of  money  being  wholly  iin- 
paid,  the  defendant,  in  consideration  thereof,  after  the  death  of  the  said  E. 

F.,  to  wit,  on  the day  of ,  in  the  year   18 — ,  there  px-omised  the 

plaintiff,  as  executor  as  aforesaid,  to  pay  him  that  sum  of  money,  on  re- 
quest. Yet  the  defendant,  though  requested,  has  not  paid  the  same,  or  any 
part  thereof,  to  the  plaintiff,  but  refuses  so  to  do;  to  the  damage,  etc. 

{Add  profert,  as  in  last  precedent.) 

The  ad  damnum  and  profert  are  only  to  be  once  inserted,  at 
the  conclusion  of  the  declaration.^ 

No.  35a.    By  an  administrator,  on  promise  to  the  intestate. 

In  the Court. 

Term,  18—. 

State  of  Ilunois,  )     . 

County  of ,      )       '    A.  B.,  plaintiff,  administrator  of  the  estate  of 

E.  F.,  deceased,  who  died  intestate,  complains  of  C. 
D.,  defendant,  of  a  plea  of  trespass  on  the  case  on  promises:  For  that 
whereas  {proceed  as  in  count  by  executor.  No.  34,  ante,  laying  the  damage  to 
the  plaintiff  "  as  administrator  as  aforesaid,"  and  add  profert,  thus:) 

And  the  plaintiff  brings  into  the  court  here  the  letters  of  administration 
to  him  granted  by  the  county  court  of  the  county  of ,  in  the  state  afore- 
said {or  tchatever  court  or  authority  granted  them),  which  give  sufficient  evi- 
dence to  the  court  here  of  the  grant  of  administration  of  the  said  estate  to 
the  plaintiff,  etc. 

I  Linder  v.  Monroe,  33  111.  388.  '  Emerson  v.  Clayton,  33  111.  493; 

R.  Co.  V.  Wills,  39  in.  App.  655. 


ASSUMPSIT.  91 

If  deemed  advisable,  add  a  count  on.  promises  to  the  ad- 
ministrator, as  in  the  case  of  an  executor,  No.  35,  ante.  Where 
the  declaration  contains  several  counts,  proceed  in  each  only 
to  the  ad  damnum^  which  is  to  be  stated  at  the  conclusion,  in 
a  separate  paragraph,  as  follows  : 

To  the  damage  of  the  plaintiff,  as  administrator  as  aforesaid,  of dol- 
lars, and  therefore  he  brings  his  suit,  etc. 
{Add  jprofert.) 

SPECIAL    COUNTS. 

No.  36.     On  promissory  note — Payee  against  maker. 

In  the — Court. 

Term,  18—. 

State  of  Illinois,  ) 

County  of ,     J  set.     A.  B.,  plaintiff,  by  E.  F.,  his  attorney,  com- 
plains of  C.  D.,  defendant,  of  a  plea  of  trespass  on  the  case  on  promises: 

For  that  whereas  the  defendant,  on  the day  of ,  in  the  year  18 — , 

in  the  county  aforesaid,  made  his  promissory  note,  and  delivered  the  same 
to  the  plaintiff,  and  thereby  then  and  there  promised  to  pay  to  the  plaint- 
iff, — after  the  date  thereof,  the  sum  of dollars,  for  value  re- 
ceived; by  means  whereof  the  defendant  then  and  there  became  liable  to 
pay  to  the  plaintiff  the  said  sum  of  money  in  the  said  note  specified,  ac- 
cording to  the  tenor  and  effect  thereof;  and  being  so  liable,  the  defendant, 
in  consideration  thereof,  then  and  there  promised  the  plaintiff  to  pay  him 
the  said  sum  of  money,  according  to  the  tenor  and  effect  of  the  said  note. 
Yet,  although  the  day  of  payment  in  the  said  note  specified  has  elapsed,  the 
defendant  has  not  paid  to  the  plaintiff  the  said  sum  of  money,  or  any  part 

thereof,  but  refuses  so  to  do;  to  the  damage  of  the  plaintiff  of dollars, 

and  therefore  he  brings  his  suit,  etc. 

No.  S7.    On  promissory  note — Payee  against  maker. 

In  the Court. 

Term,  18—. 

State  of  Illinois,  )     . 
County  of .      )       "      A.  B.,  plaintiff,  by  F.  F.,  his  attorney,  com- 
plains of  CD.,  defendant, of  a  plea  of  trespass 

on  the  case  on  promises:    For  that,  whereas,  the  defendant,  on  the day 

of ,  in  the  year  18 — ,  in  the  county  aforesaid,  made  his  promissory 

note,  and  delivered  the  same  to  the  plaintiff,  and  thereby  tlien  and  there 

(by  the  name  of )  promised  to  pay,  07i  or  before   the  day  of 

next  after  the  date  thereof,  to  the  order  of  the  plaintiff  {styling  him 

),  at  the Bank,  in ,  the  sum  of  dollars,  for  value 

received,  with  interest  on  tlie  said  sum,  from  the  date  of  the  said  note,  at  the 

rate  of per  centum  per  anyium;  by  means  whereof  the  defendant  then 

and  there,  to  wit,  at  the  time  and  place  first  aforesaid,  became  liable  to  pay 


92  ASSUMPSIT. 

to  the  plaintiff  the  amount  of  the  said  note,  according  to  the  tenor  and  ef- 
fect thereof;  and  being  so  liable,  the  defendant,  in  consideration  thereof, 
then  and  there  promised  the  plaintiff  to  pay  him  the  said  amount,  accord- 
ing to  the  tenor  and  effect  of  the  said  note. 

{The  words  in  italics  are  to  he  inserted  or  not,  or  varied,  as  the  case  may 
require.  Add  common  counts  on  the  consideration  for  which  the  note  was 
given  and  the  common  money  counts,  interest,  and  account  stated,  laying 
the  day  in  all  the  common  counts  after  tlie  maturity  of  the  note,  and  gener- 
ally very  recently.  The  consolidated  common  counts,  as  in  No.  26,  ante,  as 
far  as  the  (*)  may  he  used.     Conclude  with  a  general  hreach,  a»  follows:) 

Yet  although  the  day  of  payment  in  the  said  note  specified  has  elapsed, 
the  defendant  has  not  paid  to  the  plaintiff  the  amount  of  the  said  note,  or 
any  part  thereof,  but  refuses  so  to  do;  nor  has  the  defendant,  though  re- 
quested, paid  to  the  plaintiff  the  several  other  sums  of  money  above  speci- 
fied, or  any  or  either  of  them,  or  any  part  thereof,  but  refuses  to  pay  him 

the  same;  to  the  damage  of  the  plaintiff  of dollars,  and  therefore  he 

brings  his  suit,  etc. 

A  variance  between  the  note  described  in  the  special  count 
and  the  note  offered  in  evidence,  as  to  date,  or  otherwise,  would 
at  common  law  be  fatal.  But  if  the  execution  of  the  note  is 
proved,  the  note  can  be  offered  in  evidence  under  common 
counts.' 

In  declaring  on  a  promissory  note,  it  should  be  described  as 
it  really  is;  if  any  omission  is  made  of  any  of  the  conditions  or 
contingencies  upon  which  a  note  is  payable,  there  will  be  a 
variance. 

No.  3S.     On  promissory   note — Payee   against  maker. 
[Oliver's  Precedents,  195.] 

{Commence  as  in  No.  37,  ante.)    For  that  the  defendant,  on  the day 

of ,  in  the  year  18 — .  in  the  county  aforesaid,  by  his  promissory  note  of 

that  date,  for  value  received,  promised  the  plaintiff  to  pay  him  or  his  order 

the   sum  of  dollars, after  the  said  date,  icith  interest  on   tlie 

said  sum,  from  that  date,  at  the  rate  of per  centum  per  annum.    Yet, 

though  requested,  etc. 

It  is  better  to  add  the  common  counts  in  suits  upon  promis- 
sory notes,  bills  of  exchange  and  other  instruments  of  writing 
for  the  payment  of  money,  so  as  to  enable  the  plaintiff  to  in- 

1  Nickerson  v.  Sheldon,  33  111.  372;  herger  v.  Scott,  88  111.  477;  Childs  v. 
Streetor  v.  Streetor,  43  111.  155;  Box-      Fischer,  52  111.  205. 


.ASSUMPSIT.  93 

troduce  the  note,  etc.,  in  evidence  under  thera,  in  case  he  fails 
under  the  special  count/ 

If  the  note  is  payable  at  a  particular  place,  it  must  be  so 
averred  in  the  declaration;'  the  omission  would  cause  a  vari- 
ance.' Whore  a  cause  of  action  depends  upon  the  happening 
of  an  uncertain  event,  the  declaration  must  aver  the  happening 
of  such  event.* 

No.  39.     On  six  promissory  notes,  in  one  count.     [1  Scammon,  447.] 

{Commence  as  in  No.  36,  ante,  page  91.)  For  that  whereas  the  defend- 
ants, on,  etc.,  in,  etc.,  made  their  six  promissory  notes,  the  date  whereof  is 
the  day  and  year  aforesaid,  by  one  of  which  said  promissory  notes  the  de- 
fendants, on  or  before  the  18th  day  of  May  then  next,  pi-omised  to  pay  to 
the  order  of  the  plaintiff  one  thousand  dollars,  for  value  received,  with 
interest  thereon  at  the  rate  of  ten  per  centum  per  annum  after  the  same 
should  become  due;  and  by  another  of  the  said  promissory  notes,  the  defend- 
ants, on  or  before  the  said  18th  day  of  May,  promised  to  pay  to  the  order  of 
the  plaintiff  one  thousand  dollars,  for  value  received,  with  interest  thereon, 
at  the  rate  of  ten  per  centum  per  annum,  from  the  said  18th  day  of  May; 
and  by  another  of  the  said  promissory  notes,  the  defendants,  on  or  before 
the  said  18th  day  of  May,  promised  to  pay  to  the  order  of  the  plaintiff  one 
thousand  dollars,  for  value  received,  with  interest  thereon,  at  the  rate  of 
ten  per  centum  per  annum,  after  the  said  note  should  become  due;  and  bj' 
another  of  the  said  promissory  notes,  the  defendants,  on  or  before  the  said 
18th  day  of  May,  promised  to  pay  to  the  order  of  the  plaintiff  one  thousand 
dollars,  for  value  received,  with  interest  thereon  at  the  rate  of  ten  per 
centum  per  annum,  from  the  said  18th  day  of  May;  and  by  another  of  the 
said  promissory  notes,  the  defendants,  on  or  before  the  said  18th  day  of 
May,  promised  to  pay  to  the  order  of  the  plaintiff  one  thousand  dollars,  for 
value  received,  with  interest  thereon  at  the  rate  of  ten  per  centum  per 
annum,  from  the  said  18th  day  of  May;  and  by  another  of  the  said  promis- 
sory notes  the  defendants,  on  or  before  the  said  18th  day  of  May,  promised 
to  pay  to  the  order  of  the  plaintiff  one  thousand  dollars,  for  value  received, 
with  interest  thereon  at  the  rate  of  ten  per  centum  per  annum,  from  the 
said  18th  day  of  May;  and  by  another  of  the  said  promissory  notes,  the 
defendants,  on  or  before  the  said  18th  day  of  May,  promised  to  pay  to  the 
order  of  the  plaintiff  one  thousand  dollars,  for  value  received,  with  interest 
thereon  at  the  rate  of  ten  per  centum  from  the  said  18th  day  of  May.  Yet 
the  defendants  have  not  paid  to  the  plaintiff  the  amount  of  the  said  several 

^Lane  v.  Adams,  19  111.  167;  Boyle         '  Loice  v.  Bliss,  24  III.  168. 
v.  Carter,  24  111.  50;  Gilmore  v.  Now-  'Archer  v.  Claflin,  31  111.  306. 

land,  26  111.  201;  Bell  v.  Thompson,         *  Williams  v.  Smith,  3  Scam.  524. 
34  111.  529;  Rowell  v.  Chandler,  83  111. 
288. 


94  ASSUMPSIT. 

promissory  notes,  or  of  any  or  either  of  them,  or  any  part  thereof,  but 
refuse  so  to  do;  to  the  damage  of  the  plaintiff  of  ten  thousand  dollars,  and 
therefore  he  brings  his  suit,  etc. 

The  defendants  demurred  to  a  declaration  substantially  in 
the  above  form,  in  the  circuit  court  of  Madison  county,  at  the 
August  terra,  1637;  the  demurrer  was  overruled,  and  the  cause 
taken  to  the  supreme  court,  where  the  decision  of  the  court 
below  was  affirmed.  The  declaration  was  decided  to  be  good 
in  form  and  in  substance.  The  court,  in  the  opinion,  says 
that  •'  there  is  no  misdescription,  no  incongruity  or  want  of 
accuracy  or  certainty  in  the  count."  In  our  system  of  prac- 
tice, it  is  of  infinite  importance  to  introduce  precision  and  con- 
ciseness; and  whatever  tends  to  dispense  with  prolixity  and 
useless  recapitulation  should  be  encouraged.' 

In  Chitty  on  Pleading,  it  is  laid  down  that  several  distinct 
debts  or  contracts  may  be  included  in  one  count,  and  the 
plaintiff  will  succeed  pro  tanto^  though  he  only  proves  one  of 
such  contracts;  for  if  the  defendant  is  indebted  for  any  one 
cause,  it  is  a  sufficient  consideration  for  the  promise  (which 
the  law  raises)  of  the  defendant  to  pay  the  money .^ 

No.  Ji-O.     On  promissory  note — Indorsee  against  maker. 

{Commence  as  in  No.   37,   ante.)    For  that  whereas  the  defendant,    on 

the day  of ,  in  the  year  18 — ,  in  the   county  aforesaid,    made  his 

promissory  note,  and  delivered  the  same  to  one  G.  H.,  and  thereby  then 

and  there  {by   the  name  of )  promised   to  pay, after 

the    date   thereof  to  the    order    of  the    said  G.    H.,    {styling  him  — 
,)  at  the Bank  in ,  the  sum  of dollars,  for  value  re- 
ceived, with  interest  on   the  said  s^im,  from   the  date  of  the  said  note, 

at  the  rate  of per  centum  per  annum;  and  the  said  G.  H.  thereupon 

then  and  there,  to  wit.  at  the  time  and  place  first  aforesaid,  assigned  the 
said  note,  by  indorsement  thereon  under  his  hand,  to  one  I.  J.,  icho  there- 
upon then  and  there  assigned  the  same,  by  indor.sement  thereon  under  his 
hand,  to  the  plaintiff;  by  means  whereof  the  defendant  then  and  there  be- 
came liable  to  pay  to  the  plaintiff  the  amount  of  the  said  note,  according 
to  the  tenor  and  effect  thereof;  and  being  so  liable,  the  defendant,  in  con- 
sideration thereof,  then  and  there  promised  the  plaintiff  to  pay  him  the  said 
amount,  according  to  the  tenor  and  effect  of  the  said  note. 

{The  words  in  italics  are  to  be  used  or  not,  or  varied,  according  to  the  re- 

'  Godfrey  v.  Buckmaster,  1  Scam.  Bailey  v.  Freeman,  4  Johns.  284; 
447;  Nelson  v.  Swan,   13  Johns.  484;      Johnson  v.  Stark  Co.,  24  111.  75. 

^  1  Chit.  PI.  301. 


ASSUMPSIT.  95 

quirements  of  the  case.  Add  thevionfy  counts,  interest,  and  account  stated, 
and  general  breach,  as  follows.  As  there  is  no  privity  of  contract  between 
indorsee  and  maker,  it  is  not  nsiial  to  addany  other  common  counts.) 

And  whereas  also  the  defendant,  on   the day  of .  in  the  year 

18 — ,  in  the  county  aforesaid,  was  indebted  to  the  plaintiff  in  the  sum  of 
dollars,  for  money  before  that  time  lent  by  the  plaintiff  to  the  de- 
fendant, at  his  request;  and  in  the  like  sum  for  money  before  that  time  paid 
and  expended  by  the  plaintiff  for  the  use  of  the  defendant,  at  his  request; 
and  in  the  like  sum  for  money  before  that  time  received  by  the  defendant 
for  the  use  of  the  plaintiff;  and  in  the  like  sum  for  interest  on  divers  sums 
of  money  before  that  time  forborne  by  the  plaintiff  to  the  defendant,  at  his 
request,  for  divers  spaces  of  time  before  then  elapsed;  and  in  the  like 
sum  for  money  found  to  be  due  from  the  defendant  to  the  plaintiff,  on  an  ac- 
count then  and  there  stated  between  them;  and  being  so  indebted,  the  de- 
fendant, in  consideration  thereof,  then  and  there  promised  the  plaintiff  to 
pay  him,  on  request,  the  several  sums  of  money  so  due  to  him  as  aforesaid. 

Yet  although  the  day  of  payment  in  the  said  note  specified  has  elapsed, 
the  defendant  has  not  paid  to  the  plaintiff  the  amount  of  the  said  note,  or 
any  part  thereof,  but  refuses  so  to  do;  nor  has  the  defendant,  though  re- 
quested, paid  to  the  plaintiff  the  sevei*al  other  sums  of  money  above  speci- 
fied, or  any  or  either  of  them  or  any  part  thereof,  but  refuses  to  pay  him 

the  same;  to  the  damage  of  the  plaintiff  of dollars,  and  therefore  he 

brings  his  suit,  etc. 

The  allegation  in  the  above  precedent,  "  assigned  the  said 
note,  by  indorsement  thereon  under  his  hand,"  conforms  to 
the  statute  of  Illinois.^  "  Indorsed  and  delivered  the  said 
note,"  is,  however,  a  sufficient  averment.^  It  has  been  held 
that  a  remote  indorsee  may  declare  as  the  immediate  indorsee 
of  the  first  indorser,  or  of  any  intermediate  indorser — striking 
out  on  the  trial  the  indorsements  not  stated;^  but  it  would 
seem  that  if  the  plaintiil  wished  to  take  the  benetit  of  any 
intermediate  indorser's  title,  this  indorsement  must  be 
averred.'  A  note  made  payable  to  the  order  of  the  maker, 
becomes,  by  his  indorsement  and  delivery,  hke  a  note  made 
to  the  order  of  any  other  person.* 

'  Rev.  Stat.  (1893),  993;  Rev.  Stat.  ■•  1  Gale  198. 

(1895),  1061;  2  Starr  &  Curtis  1654;  ^  Hall  v.  Burton,  29  111.  321;  Me- 

Coal  Co.  V.  Lickiss,  72  111.  521.  Auliff  v.    Renter,   61  111.  App.    32; 

«  Chitty's  PI.  127.  Bank  v.   Nordgren,  57111.  App.  346; 

3  Chitty  on  Bills,  518;  Bayley  on  Whitford  v.  Herting,  60  111.  App. 

Bills,  114;  Best  v.  Bank,  76  111.  608.  413. 
SeePorferv.  Cushman,  19  111.    572; 
Steinfield  v.  Taylor,  51  111.  App.  399. 


96  ASSUMPSIT. 

No.  41.    Indorsee  of  an  executor  against  maker. 

(Commence  as  in  No.  37,  ante,  page  91.)    For  that  whereas  the  defendant, 

on  the day  of ,  in  the  year  18 — ,  in  the  county  aforesaid,  made  his 

promissory  note,  and  delivered  the  same  to  one  E.  F.,  and  thereby  then  and 

there  promised  to  pay, after  the  date  thereof,  to  the  said  E.  F.,  or 

his  order,  the  sum  of dollars,  for  value  received,  with  interest  thereon, 

etc.;  and  the  said  E.  F.  thereupon,  on  the  da.y  first  aforesaid,  there  assigned 
the  said  not?,  by  indorsement  thereon  under  his  hand,  to  one  G.  H.,  since 
deceased:  And  the  plaintiff  avers  that  on,  etc.,  the  saidG.  H.  there  made 
his  last  will  and  testament  in  writing,  and  thereby  then  and  there  appointed 
one  J.  K.  executor  thereof;  and  afterward,  to  wit,  on,  etc.,  the  said  G.  H. 
there  died;  and  thereupon  the  said  J.  K.,  on,  etc.,  there  duly  proved  the 
said  last  will  and  testament,  and  took  upon  himself  the  execution  thereof; 
and  the  said  J.  K. ,  so  being  such  executor,  afterward,  to  wit,  on  the  day 
last  aforesaid,  as  such  executor  as  aforesaid,  there  assigned  the  said  note, 
by  indorsement  thereon  under  his  hand,  to  the  plaintiff:  By  means  whereof , 
etc. 

(State  lidbiUty  and  promise,  and  add  money  counts,  etc.,  and  breach,  as 
in  last  precedent.) 

An  administrator  or  executor,  or  one  of  several  executors, 
may  indorse  a  promissory  note  payable  to  the  intestate,  or  tes- 
tator, so  as  to  vest  the  legal  interest  in  the  assignee.* 

No.  Ji2.    Surviving  partner  or  payee  against  surviving  partner  or  maker, 
on  promissory  note. 

In  the Court. 

Term,  18—. 

State  of  Illinois,  )     ^^ 
County  of ,      )       '      A.  B.,  plaintiff,  by  J.  K.,  his  attorney,  com- 
plains of  E.  F.,  defendant,  of  a  plea  of  tres- 
pass on  the  case  on  promises:  For  that  whereas  in  the  lifetime  of  one  C.  D. 

and  of  one  G.  H.,  both  since  deceased,  to  wit,  on  the day  of ,  in 

the  year  18 — ,  in  the  county  aforesaid,  the  defendant  and  the  said  G.  H. 
made  their  promissory  note  (by  the  name  and  style  of  E.  F.  &  Co.,)  and  de- 
livered the  same  to  the  plaintiff  and  the  said  C.  D.,  and  thereby  then  and 

there  promised  to  pay  after  the  date  thereof,   to   the  plaintiff  and 

the  said  C.  D.,  (styling  them  by  the  name  and  style  of  A.  B.  d-  Co.,)  or  their 

order,  the  sum  of dollars,  for  value  received,  toith  interest  thereon,  etc. : 

by  means  whereof  the  defendant  and  the  said  G.  H.  then  and  there,  to  wit, 
at  the  time  and  place  first  aforesaid,  became  liable  to  pay  to  the  plaintiff 
and  the  said  C.  D.  the  amount  of  the  said  note,  according  to  the  tenor  and 
effect  thereof;  and  being  so  liable,  the  defendant  and  the  said  G.  H.,  in 

*  Makepeace  v.  Jlfoore,  5  Gilm.  474;      Newell,  15  lU.  333;  Walker  v.  Craig, 
Williams  on  Ex.  796;  Valentine  v.       18  111.  116. 
Jackson,  9  Wend.    302;  Dwight  v. 


ASSUMPSIT.  97 

consideration  thereof,  then  and  there  promised  the  plaintiff  and  the  said  C. 
D.  to  pay  them  the  said  amount,  according  to  tlie  tenor  and  effect  of  the 
said  note. 

{Second  count.)  And  whereas  also  afterward,  in  the  lifetime  of  the  said 
C.  D.  and  G.  H.,  both  since  deceased,  to  wit,  on,  etc.,  in,  etc.,  the  defend- 
ant and  the  said  G.  H.  were  indebted  to  the  plaintiff  and  the  said  C.  D.  in 
the  sum  of,  etc.  (Proceed  iinth  the  money  counts,  interest,  and  account 
stated;  and  conclude  with  the  general  breach,  as  follows: 

Yet  although  the  day  of  payment  in  the  said  note  specified  has  elapsed, 
the  defendant  and  the  said  G.  H.  have  not,  nor  has  either  of  them,  ever 
paid  to  the  plaintiff  and  the  said  C.  D.,  or  either  of  them,  the  amount  of 
the  said  note,  or  any  part  thereof;  nor  have  the  defendant  and  the  said  G. 
H.,  though  thereto  requested,  nor  has  either  of  them,  ever  paid  to  the  plaint- 
iff and  the  said  C.  D.,  or  either  of  them,  the  several  other  sums  of  money 
above  specified,  or  any  or  either  of  them,  or  any  part  thereof;  but  the  de- 
fendant and  the  said  G.  H.  in  his  lifetime  refused,  and  the  defendant  has 
ever  since  the  death  of  the  said  G.  H.  refused,  and  still  refuses,  to  pay  the 

same;  to  the  damage  of  the  plaintiff  of dollars,  and  therefore  he  brings 

his  suit,  etc. 

It  seems  it  is  not  necessary  to  declare  against  a  surviving 
partner  as  such,'  he  may  be  sued  as  having  contracted  alone, 
without  noticing  the  deceased.^ 

ISfo.  4S.    Executor  of  payee  against  maker,  on  promissory  note. 

{Commence  as  in  No.  34,  ante,  page  89.)    For  that  whereas  in  the  lifetime 

of  the  said  E.  F.,  to  wit,  on  the day  of ,  in  the  year  18 — ,  in  the 

county  aforesaid,  the  defendant  made  his  promissory  note,  and  delivered 

the  same  to  the  said  E.  F.,  and  thereby  then  and  there  promised  to  pay, 

months  after  the  date  thereof,  to  the  said  E.  F.,  or  his  order,  the  sum 

of dollars,   for  value  received,   toith  interest  thereon,  etc.,  by  means 

whereof  the  defendant  then  and  there,  to  u'it,  at  the  time  and  jylace  first 
aforesaid,  became  liable  to  pay  to  the  said  E.  F.  the  said  sum  of  money  in 
the  said  promissory  note  specified,  according  to  the  tenor  and  effect  thereof ; 
and  being  so  liable,  the  defendant,  in  consideration  thereof,  then  and  there 
prdhiised  the  said  E.  F.  to  pay  him  the  said  sum  of  money,  according  to  the 
tenor  and  effect  of  the  said  note. 

{Add  money  counts,  etc.,  laying  the  promises  to  the  deceased,  and  conclude 
imth  the  breach,  asfollo^vs:) 

Yet  although  the  day  of  payment  in  the  said  note  specified  has  elapsed, 
the  defendant  has  not  paid  the  amount  of  the  said  note,  or  any  part  thei'eof , 
either  to  the  said  E.  F.  in  his  lifetime,  or  to  the  plaintiff  since  the  death  of 
the  said  E.  F. ;  nor  has  the  defendant,  though  thereto  requested,  paid  the 

'1  Chit.  PI.  40;  Goelet  v.  McKins-      Bank,   1   Har.  &  Gill.,  231;   2  Chit. 
try.  1   Johns.  Cases,  405;  Raborg  v.      Rep.  406. 
7 


98  ASSUMPSIT. 

several  other  sums  of  money  above  sper-ified,  or  any  or  either  of  them,  or 
any  part  thereof,  either  to  the  said   E.  F.  in  his  lifetime,  or  to  the  plaintiff 
since  the  death  of  the  said  E.   F. ;    but  to  pay  the  same  the  defendant  re- 
fuses, to  the  damage  of  the  plaintiff,  as  executor,  etc. 
{Add  profert,  as  in  No.  34,  ante,  page  89.) 

No.  44.    Administrator  of  payee  against  maker,  on  promissory  note. 

(Commence  as  in  No.  35a,  ante,  paje  90.)  For  that  vrhereas  heretofore,  in 
the  lifetime  of  the  said  E.  F.,  to  wit,  on,  etc.,  in,  etc.,  the  defendant  made 
his  promissory  note,  and  delivered  the  same   to  the  said  E.  F.,  and  thereby 

then  and  there  promised  to  pay, after  the  date  thereof,  to  the  said 

E.  F.,  or  his  order,  the  sura  of dollars,  for  value  received,  with  interest 

thereon,  etc. :  by  means  whereof  the  defendant  then  and  there,  to  icit,  at  the 
time  and  place  first  aforesaid,  became  liable  to  pay  to  the  said  E.  F.  the 
said  sum  of  money  in  the  said  promissory  note  specified,  according  to  the 
tenor  and  effect  thereof;  and  being  so  liable,  the  defendant,  in  consideration 
thereof,  then  and  there  promised  the  said  E.  F.  to  pay  him  the  said  sum  of 
money,  according  to  the  tenor  and  effect  of  the  said  note. 

{Add  money  counts,  etc.,  laying  the  promises  to  the  deceased,  and  breach, 
as  in  last  precedent,  and  prof  ert  as  in  No.  35a,  ante,  page  90.) 

No.  45.     Partners,  payees,  against  x)artners,  makers,  on  promissory  note. 

In  the Court. 

Term,  18—. 

State  of  Illinois,    }      . 

County  of ,      (  A.  B.,  C.  D.  and  E.  F.,  (partners  under  the 

name  and  style  of  A.  B.  &  Co.,)  plaintiffs,  by , 

their  attorney,  complain  of  G.  H.,  O.  K.  and  P.  T.,  (partners  under  the 
name  and  style  of  Q.  H.  &  Co.,)  defendants,  of  a  plea  of  trespass  on  the  case, 
on  promises  :  For  that  whereas  the  defendants,  on,  etc.,  in,  etc.,  made 
their  promissory  note  (by  the  said  name  and  style  of  G.  H.  &  Co..)  and 
tliereby  then  and  there  promised  to  pay  to  the  plaintiffs,  (styling  tliem  by 

the  said  name  and  style  of  A.  B.  &  Co.,) months  after  the  date  thereof, 

the  sum  of  dollars,  for  value  received,  with  interest  thereon,  etc.:  by 

means  whereof,  etc. 

(State  liability  and  promise,  and  add  common  counts,  etc.,  and  general 
breach,  as  in  No.  37,  ante.) 

In  a  declaration  by  or  against  partners,  it  seems  it  is  unnec- 
essary to  describe  them  as  such,'  and  that  part  of  the  above 
form  which  is  in  italics  might  be  omitted.  It  is  well,  however, 
to  state  how  the  parties  to  a  note  or  other  instrument  are  therein 
described. 

1 1  Swan's  Pr.  303,  note  a. 


ASSUMPSIT.  99 

No.  46.     Payee  against  Jiitshand  and  wife,  on  note  given  by  loife' while  sole. 

[2  Chit.  PI.  1.36.] 

{Commence  as  in  No.  33,  ante,  page  8S.)  For  that  whereas  the  said  E.  here- 
tofore, and  while  she  was  sole  and  unmarried,  to  wit,  on,  etc.,  at,  etc., 
made  her  certain  promissory  note  in  writing,  bearing  date  the  day  andye^ir 
aforesaid,  and  thereby  then  and  there  promised  to  pay  {two)  months  afttr 

the  date  thereof,  to  the  plaintiff,  or  order,  the  sum  of dolhirs,  for  value 

received,  and  tlien  and  there  delivered  the  said  promissory  note  to  the 
plaintiff;  by  means  whereof  the  said  E.  then  and  there  became  liable  to  pay 
to  the  plaintiff  the  said  sum  of  money  in  the  said  promissory  note  specified, 
according  to  the  tenor  and  effect  of  the  said  promissory  note;  and  being  so 
liable,  she,  the  said  E.,  in  consideration  thereof,  afterward,  and  while  she 
was  sole  and  unmarried,  to  wit,  on  the  day  and  year  aforesaid,  at,  etc., 
aforesaid,  pi'omised  the  plaintiff  to  pay  him  the  said  sum  of  money  in  the 
said  promissory  note  specified,  according  to  the  tenor  and  effect  thereof. 

{Add  money  counts,  etc.,  and  breach.     See  No.  33  ante,  ipage  88.) 

No.  47.     Indorsee  against  indorser  of  a  promissory  note,   alleging  institu- 
tion and  prosecution  of  suit  against  maker. 

{Commence  as  in  No.  37,  ante,  page  91.)  For  that  whereas  one  E.  F.,  on, 
etc. ,  in,  etc. ,  made  his  promissory  note,  and  delivered  the  same  to  the  defend- 
ant, and  thereby  then  and  there  promised  to  pay, after  the  date 

thereof,  to  the  defendant,  or  his  order,  the  sum  of  dollars,  for  value 

received,  with  interest  tltereon,  etc.;  and  thereupon  the  defendant,  on  the 
day  first  aforesaid,  there  indorsed  and  delivered  the  said  note  to  the  plaint- 
iff: And  although  on,  etc.,  the  said  note  became  due,  the  said  E.  F.  did 
not  nor  would  then,  or  before  or  since  that  time,  pay  to  the  plaintiff  the 
amount  of  said  note,  or  any  part  of  the  same.  And  the  plamtiff  avers,  that 
thereupon,  on,  etc.,  he  impleaded  the  said  E.  F.  in  a  plea  of  trespass  on  the 

case,  on  the  said  note,  in  the court  of  the  said  county  of ,  (where  the 

said  E.  F.  then  resided,)  to  the  term  of  that  court,  in  the  same  year; 

and  such  proceedings  were  thereupon  had  in  that  plea,  tliat  in  the  same 
term,  to  wit,  on,  etc.,  by  the  consideration  of  the  same  court,  the  |  laintiff 

recovered  against  the  said  E.  F.  the  sum  of  dollars,  damages,  as  well* 

as  the  costs  of  the  plaintiff  by  him  about  his  su't  in  that  behalf  expendel, 
whereof  the  said  E.  F.  was  convicted;  and  the  said  judgmeni;  being  in  full" 
force,  and  the  said  damages  and  costs  remaining  wholly  unpaid,  the  plaint- 
iff, on,  etc.,  for  obtaining  satisfaction  thereof,  sued  out  of  the  same  court  a 
writ  of  fieri  facias,  dir^-cted  to  the  sheriff  of  the  said  countj'  of  — — ,  by 
which  said  writ  the  Peo  le  of  the  said  State  of  Illinois  commanded  the  said' 
sheriff  that  of  the|goods  and  chattels,  lands  and  tenements,  in  his  comity,  of 
the  said  E.  F.,  the  said  sheriff  should  cause  to  be  made  the  damages  afore- 
said, and  the  sum  of  dollars,  the  costs  aforesaid,  together  with  in- 
terest thereon  at  the  rate  of  six  per  centum  per  annum  fi-om  the  time  of 

recovering  the  same  as  aforesaid,  and  also  the  further  sum  of , 

accruing  costs  on  the  said  judgment,  and  that  the  said  sheriff  sho  dd  have 
those  moneys  ready  to  render  to  the  plaintiff,  according  to  law,  and  should 


100  ASSUMPSIT. 

make  return  of  the  said  writ  in  ninety  days  after  t\ie  date  thereof;  -which 
said  writ,  on  the  day  last  aforesaid,  was  there  deUvered  to  tlie  said  sheriff 
to  be  executed;  and  on  the  return  day  of  tlie  said  writ,  to  wit,  on,  etc.,  the 
said  slier  if  returned  to  the  same  court  upon  the  said  writ  to  the  effect  that 
in  his  county  the  said  E.  F.  had  not  any  goods  or  chattels,  lands  or  tene- 
ments, whereof  he,  the  said  sheriff , could  cause  to  be  made  the  damages  and 
costs  aforesaid,  or  any  part  thereof:  And  so  the  plaintiff  says,  that  before 
the  commencement  of  this  sviit  he  used  due  diligence,  by  the  institution  and 
prosecution  of  a  suit  against  the  said  E.  F.,  t  >  make  of  the  said  E.  F.  the 
amount  of  the  said  note,  but  without  avail.  By  means  whereof  the  defend- 
ant, on  the  day  last  aforesaid,  having  notice  of  the  premises,  there  became 
liable  to  pay  to  the  plaintiff,  on  request,  the  amount  of  the  said  note,  and 
the  costs  aforesaid;  and  being  so  liable,  the  defendant,  in  consideration 
thereof,  then  and  there  promised  the  plaintiff  to  pay  him  the  said  amount, 
and  the  costs  aforesaid,  on  request.  Yet  the  defendant,  though  requested, 
lias  not  paid  the  same,  or  any  part  thereof,  to  the  plaintiff,  but  refuses  so  to 

do;  to  the  damage  of  the  plaintiff  of  dollars,  and  therefore  he  brings 

bis  suit,  etc. 
(Form  No,  48,  following,  may  be  adapted  and  used  as  a  second  count.) 


Under  the  law  merchant,  the  indorsement  of  a  noteamonnts 
to  a  contract  on  the  part  of  the  indorser,  that  if,  Avhen  duly 
presented,  the  note  is  not  paid  by  the  maker,  the  indorser  will, 
upon  due  and  reasonable  notice  given  him  of  the  dishonor,  pay 
the  same  to  the  indorsee  or  other  holder.  An  indorser  may, 
by  the  form  of  his  indorsement,  make  himself  absolutely  and 
positively,  in  all  events,  liable  for  the  payment  of  the  note, 
with  or  without  due  presentment  or  due  notice  of  non-pay- 
ment. If  there  is  an  agreement,  in  writing,  to  dispense  with 
any  demand  upon  the  maker,  or  with  notice  of  dishonor,  the 
language  will  be  construed  to  import  an  absolute  dispensation 
with  the  ordinary  conditions  of  an  indorsement,  and  the  in- 
dorser will  become  as  absolutely  bound  to  pay  the  same,  when 
due,  as  if  a  guarantor  or  surety.* 

As  a  general  rule,  the  name  of  the  payee,  appearing  on  the 
back  of  a  promissory  note,  is  evidence  that  he  is  indorser,  and 
proves  that  he  has  assumed  the  liability  of  an  indorser,  as 
fully  as  if  the  agreement  were  written  out  in  words."  An  in- 
dorser of  a  note,  although  "  without  recourse,"  will  be  liable 
to  the  indorsee  or  holder,  on  the  implied  warranty  that  the 

^Dunnigan  v.  Stevens,  123  III.  396.         « Johnson  v.  Glover,  121  EL  283. 


ASSUMPSIT.  101 

note  is  a  valid  obligation  for  the  amount  expressed  upon  its 
face.' 

An  indorsement  without  date  is  presumed  to  have  been 
made  at  the  date  of  the  note;  but  this  presumption  may  be 
rebutted.*  The  assignee  is  not  bound  to  give  the  assignor 
notice  of  non-payment.  Presentment  of  the  note  to  the  maker 
at  maturity,  and  notice  to  the  assignor  of  non-payment,  will 
not,  under  the  statute  of  Illinois,  give  a  right  of  action  against 
the  latter.' 

A  guaranty  of  a  note,  by  the  payee  or  assignee,  operates 
also  as  an  assignment;*  and  if  an  unauthorized  guaranty  is 
written  over  an  assignor's  signature,  the  contract  of  assign- 
ment is  not  thereby  invalidated  or  affected.'  In  an  action 
by  an  assignee  against  an  assignor,  it  is  not  competent  for  the 
latter  to  prove  a  verbal  agreement  made  at  the  time  of  the 
indorsement  of  the  note,  to  the  effect  that  he  should  not  be 
liable  as  indorser.*  But  where  the  payee  of  a  note  sold  and 
delivered  it  after  it  became  due,  and  some  time  afterward  in- 
dorsed it,  without  consideration,  and  solely  for  the  purpose  of 
enabling  the  indorsee  to  sue  thereon  in  his  own  name,  and 
with  the  express  agreement  that  the  indorser  should  not  be 
liable  by  reason  of  his  indorsement,  it  was  held  that  such  in- 
dorser was  not  liable  in  an  action  by  remote  indorsees  of  the 
note.' 

The  indorser  is  liable  according  to  the  law  of  the  place  of 
indorsement,*  unless  the  indorsement  specially  provides  that  his 
liability  is  to  be  governed  by  the  law  of  some  other  state.' 

^Drennan  v.  Bunn,   124  111.  175;  ^  Heaton  v.  Hulbert,  3  Scam.  491; 

Daniel  on   Negotiable  Instruments,  judson    v.    Gookwin,    37    111.    286; 

Vol.  1,  Sec.  670;   Parsons  on  Bills  Childs  v.  Davidson,  38  111.437;  Par- 

and  Notes,  p.  39.  fce,.  v.Wefherell,  44  111.  App.  95. 

^  White  V.  ITe.a-er,  41  111.  409;  Du-  ^  Croskey  v.  Skimier,  44  111.  321. 

2my  V.  Schuyler,  45  111.   306;  Rich-  ^  Mason    v.  Burtcn,    54    lU.    349. 

ards  V.  Betzer,   53  111.   466;  Clarke  i  Hayes  v.  Graham,  2  Scam.  429. 

v.  Johnson, Mill  296;  Sinithv.  Nev-  »  Holbrook  v.    Vibbard,   2   Scam. 

lin,  89  111.   193;   Hearson  v.   Orau-  465;    Gay  v.  Rainey,    89    111.    221; 

dine,  87  111.  115;  Cisne  v.  Chidester,  Dunnigan   v.  Stevens,  122    111.  396; 

85  111.  523.  Wooley  v.  Lynn,  117  111.  244. 

^Bank  v.  Hawley,   1  Scam.  580;  »  ^?/mar  v.  5/i€Zdo7i,  12  Wend.  439. 
Hilborn    v.    Arties,   3   Scam.    344; 
Pierce  v.  Short,  14  III.  144. 


102  ASSUMPSIT. 

The  remote  assignor  of  a  note  is  liable  to  an  action  by  the  last 
assignee,  upon  any  ground  upon  which  an  assignor  can  in  any 
case  be  made  liable.'  It  is  unnecessary,  in  such  action  against  a 
remote  assignor,  to  set  forth  the  intermediate  indorsements,  but 
the  plaintiff  may  simply  aver  that  the  defendant  indorsed  the 
note  to  him/  And  it  seems  that  the  right  of  an  assignee  to 
sue  remote  assignor  will  not  be  impaired  by  the  fact  that  the 
former  has  obtained  a  judgment  against  an  intermediate  as- 
signor/ 

Suits  against  defendants  severally  liable  only. — By  an 
amendment  to  the  Illinois  statute  in  relation  to  negotiable  in- 
struments, in  force  July  1,  1895,  it  is  provided  that  "persons 
severally  liable  upon  bills  of  exchange  or  promissory  notes, 
payable  in  money,  may  all  or  any  of  them  severally  be  included 
in  the  same  suit  at  the  option  of  the  plaintiff,  and  judgment 
rendered  in  said  suit  shall  be  without  prejudice  to  the  rights 
of  the  several  defendants  as  between  themselves." 

Said  amendment  also  prescribes  the  manner  in  which  judg- 
ment in  any  such  suit  shall  be  entered,  and  the  proceedings  as 
to  the  other  defendants  where  the  judgment  is  paid  by  one  or 
where  all  the  defendants  have  not  been  served."  Prior  to  the 
enactment  of  said  amendment,  where  there  were  several  in- 
dorsements on  a  note  the  consecutive  indorsers  were  liable 
severally  only,  and  could  not  be  sued  jointly.* 

Measure  of  damages. — In  a  suit  by  an  assignee  against  an 
assignor  of  a  note,  the  measure  of  damages  is  the  amount  paid 
by  the  assignee  for  the  note,  with  interest  on  that  amount,* 
with  the  limitation  that  the  recovery  must  not  exceed  the  sum 
due  upon  the  face  of  the  note;  ^  and  it  is  said  the  plaintiff's 
costs  in  the  suit  against  the  maker  are  recoverable  in  the  suit 
ag'ainst  the  assignor.' 

Diligence  required  of  maker. — By  the  statute  of  Illinois, 

'  Hayes   v.  Graham,  2  Scam.  429;  Givens  v.  Bank,  85  111.  442;  Kayser 

Clifford   V.  Keating,  3  Scam.   250;  v.  Hall,  85  111.  511. 

Roberts  v.  Haskell,  20  111.  59.  « Raplee  v.  Morgan,  2  Scam.  561; 

^  Hayes   v.  Graham,  2  Scam.  429;  Wilson  v.  Van  Winkle,  2  Gilm.  684. 

Chit,  on  Bills,  572.  ''Schaeffer  v.  Hodges,  54  111.  337; 

3  Hayes  v.  Graham,  2  Scam.  429.  Short  v.  Coffeen,  76  111.  245. 

*Rev.  Stat.  (1895),  1061-2.  ^Corgan  v.  Frew,  89  111.  31. 

^  Brown  v.  Knower,  1   Scam.  470; 


ASSUMPSIT,  103 

the  assignor  of  a  negotiable  instrument  is  liable  to  the  action 
of  the  assignee,  if  the  latter  has  without  avail  used  due  dili- 
gence, by  the  institution  and  prosecution  of  a  suit,  to  compel 
the  maker  to  pay  the  debt;  but  the  assignee  is  excused  from 
using  such  diligence,  where  the  institution  of  a  suit  against 
the  maker  would  have  been  unavailing,  or  where  the  maker 
had  absconded,  or  resided  without  or  had  left  the  state,  when 
the  instrument  became  due.* 

Where  the  plaintiff  in  a  suit  against  the  indorser  relies 
upon  the  insolvency  of  the  maker,  the  burden  is  upon  him  to 
show  that  such  insolvency  continued  until  the  commencement 
of  the  suit.^  Upon  a  note  assigned  after  maturity,  the 
assignor  is  chargeable  if  the  assignee  has  been  unable  to  com- 
pel payment  by  the  maker,  after  using  due  diligence  by  suit, 
or  if  such  suit  would  have  been  unavailinof.* 

Diligence,  to  charge  the  assignor,  must  be  by  suit,*  and  the 
absence  of  the  maker  from  the  county  is  not  a  sufficient 
excuse  for  not  bringing  suit/  Such  suit  must  be  brought  to 
the  first  term  of  court  after  the  note  falls  due/  But  where  it 
was  previously  announced  by  the  judge  that  the  term  would 
not  be  held,  it  was  decided  that  the  assignee  was  not  required 
to  bring  suit  to  such  term; '  and  it  seems  he  would  be  excused 
from  commencing  his  action  at  the  first  term,  if  unable  by 
diligent  effort  to  ascertain  in  time,  the  residence  of  the 
maker/  Where  the  amount  is  within  the  jurisdiction  of  a 
justice  of  the  peace,  it  has  been  held  that  a  suit  brought  on 
the  note,  before  a  justice,  within  three  days  after  maturity, 

»  Rev.  Stat.  (1895),  1061;    Bai-ber  Blanchard,   86  111.    165;    Bonnell  v, 

V.  Bell,  77  111.  490;  WickersJiam  v.  Holt,  89  111.  71;   Woolverto7i  v.  Tay- 

Altoni,  77  111.  620;  Kayser  v.  Hall,  lar,  43  111.  App.  424. 

85  111.   511;  Baer  v.  Lichten,  24  III.  '^ Mason  v.  Wash,  Breese  39. 

App.  311;    Telford  w.    Oarrels,    132  TarZ^on  v.  3MZer,  Breese  68. 

111.  550.  ^Lusk  V.  Cook,  Breese,  84;  Chal- 

^Baer  v,  Lichten,  24  111.  App.  311;  mers  v.  3Ioore,  22  111.  359;  Kayser 

Bledsoe    v.    Graves,   4    Scam.    382;  v.  Hall,  85  111.  bl\',  Finley  v.  Green, 

Summers  v.   Sheldon,  40  111.   App.  85  111.  535;  Bacr  v.  Lichten,  24  111. 

189.  App.  311;  Garrity  v.  Belts,  20  111. 

^Crouch  V.   Hall,  15  111.  263;  see  App.  327. 

Pierce  v.  Short,  14  111.   144;  Clayes  "i  Brown  v.  Pease,  3  Gilm.  191. 

V.    White,   83  111.    540;    Aldrich  v.  ^Bestorv.  Walker,  4.  Gilm.  14. 
Goodell,    75    lU.    453;    Babcock    v. 


104  ASSUMPSIT. 

was  in  good  time.'  And  it  seems  the  assignee  ought  to  sue 
before  a  justice,  if  the  amount  is  within  a  justice's  jurisdiction, 
and  satisfaction  of  the  debt  could  thus  be  sooner  obtained." 

Suit  must  not  only  be  brought,  but  everything  in  the  as- 
signee's power  must  be  done  to  obtain  judgment,  at  the  first 
term.^  And  he  must  proceed  with  diligence  to  enforce  the 
judgment  by  execution,  unless  it  can  be  clearly  shown  that 
execution  would  be  unavailing."  If  a  justice's  judgment,  exe- 
cution must  be  sued  out  thereon,  and  returned  "  no  property," 
and  then  a  transcript  of  the  judgment  must  be  filed  in  the 
office  of  the  clerk  of  the  circuit  court,  and  execution  issued 
thereon,  so  as  to  reach  any  real  estate  of  the  maker,  and  such 
execution  must  be  returned  in  like  manner.* 

But  the  assignee  is  not  bound  to  apply  to  a  court  of  chan- 
cery to  remove  obstructions  in  the  way  of  an  execution  against 
the  property  of  the  maker;^  nor,  it  would  seem,  to  have  a  ca. 
sa.  issued;'  nor  to  resort  to  process  of  garnishment  against 
debtors  of  the  maker — not,  at  least,  unless  the  assignee  had 
notice  of  the  existence  of  the  debts,  if  indeed  he  is  bound  in 
any  event  to  pursue  that  remedy;'  nor  to  present  his  claim  in 
the  United  States  district  court,  in  a  proceeding  in  bankruptcy 
against  the  maker;"  nor,  it  would  seem,  to  cause  goods  of  a 
non-resident  maker  to  be  attached  in  transitu}" 

The  execution  must  remain  in  the  officer's  hands  during  its 
whole  lifetime;  or,  if  returned  before  the  expiration  of  that 
time,  the  assignee  must  aver  and  prove  that  its  further  con- 
tinuance in  the  hands  of  the  officer  would  have  been  unavail- 
ing-" 

The  execution  must  issue  to  the  county  in  which  the  suit 

was  brought;'"  and  the  assignee  is  not  required  to  seek  else- 
where with  an  execution  for  property  of  the  maker;  though 
if  the  maker  has  property  in  another  county,  and  that  fact  is 

^Raplee  v.  Morgan,  2  Scam.  561.  ">  Cmvles  v.  Litchfield,  2  Scam,  359. 

2  Allison  V.  Smith,  20  111.  104.  ^Pierce  v.  Short,  14  111.  146. 

8  Bestor  v.  Walker,  4  Gilm.  3.  »  Booth  v.  Storrs,  54  111.  472. 

*  Gay  V.  Rainey,  89  111.  221.  ">il/ason  v.  Burton,  54  111.  349. 
^Saunders  v.  OBriant,  2  Scam.  ^^  Hnndiii  x.  Reynolds,  22  111.  207. 

370.  ''^  Bestor  v.  Walker,  4  Gilm.  18. 

*  Bledsoe  v.  Graves,  4  Scam.  383. 


ASSUMPSIT.  105 

known  to  the  assignee,  it  would  seem  that  he  ought  to 
endeavor  to  make  his  money  out  of  such  property/ 

The  suit  against  the  maker  must  be  brought  in  the  county 
where  he  resides,  and  the  assignee  is  not  required  to  sue  in 
any  other.''  If,  however,  his  residence  is  wholly  unknown  to 
the  assignee,  the  latter  may  elect  to  consider  as  the  place  of 
the  maker's  residence  the  county  where  the  note  was  made,  if 
he  is  found  there/ 

If  the  assignee,  by  reasonable  diligence,  might  have  known 
of  property  of  the  maker,  sufficient  to  satisfy  the  debt,  in  the 
county  where  the  suit  against  the  latter  was  brought,  the 
former  can  not  recover  against  the  assio-nor/  If  the  maker 
has  property  worth  more  than  any  incumbrance  on  it,  it  is  the 
duty  of  the  assignee  to  have  it  levied  on,  and  at  least  offered 
for  sale;  and  whenever  others  set  up  claims  to  property  in  pos- 
session of  the  maker,  the  assignee  is  bound  to  contest  those 
claims,  or  take  the  responsibility  of  showing  their  validity/ 

The  assignor  Avill  be  liable  where  the  assignee  is  unable  to 
compel  payment  from  the  maker  by  reason  of  fraud  or  other 
matter  in  the  original  contract  between  the  maker  and  the 
payee/  It  will  be  seen  from  the  authorities  cited  that  the 
assignee  may  excuse  any  neglect,  or  cessation  of  effort,  on  his 
part,  in  his  proceedings  against  the  maker,  by  showing  that 
any  greater  or  further  diligence  would  have  availed  nothing. 

No.  48.    Indorsee  against  indorser  of  promissory  note— Suit  against  the 
maker  unavailing. 

(State  making  and  indorsement  of  note,  as  in  last  precedent  and  proceed 
thus:)  And  although  on,  etc.,  the  said  note  became  due,  the  said  E.  F.  did 
not  nor  would  then,  or  at  any  time  before  or  afterward,  pay  to  the  plaintiff 
the  amount  of  the  said  note,  or  any  part  thereof;  (*)  and  the  jilauititf  avers 
that  the  said  E.  F.  was  wlien  the  said  note  became  due  as  aforesaid,  and 
from  thence  hitherto  has  continued  to  be,  insolvent,  and  unable  to  pay  the 
said  amount,  or  any  part  thereof,  wherefore  the  institution  of  a  suit  against 
liim  on  the  said  note,  at  that  time  or  afterward,  would  have  been  unavail- 
ing; of  which  premises  the  defendant  then  and  there  had  notice  :    By  means 

1  Bestor  v.  Walker,  4  Gilm.  3.  ^  Roberts  v.    Haskell,    20  111.  59; 

^  Bestor  v.     Walker,    4  Gilm.  3;      Chalmers  v .  Moore,  22  111.359. 

Judsfn  V.  Gooku-in,  37  111.  286.  «  Wilson  v.  Van  Winkle,  2  Gilm. 

3  Bestor  v.  Walker,  4  Gilm.  3.  684. 

4  i\ wou  V.  Weijrich,  20  111.  600. 


106  ASSUMPSIT. 

wiiereof ,  the  defonrlant  then  and  there  became  liable  to  pay  to  the  plaintiff, 
on  request,  tlie  amount  of  the  said  note;  and  being;  so  liable,  the  defendant, 
in  consideration  tliereof,  then  and  there  promised  the  plaintiff  to  pay  him 
the  said  amount,  on  request.  Yet  the  defendant,  though  requested,  has 
not  paid  the  same,  or  any  part  thereof,  to  the  plaintiff,  but  refuses  so  to  do; 

to  the  damage  of  the  plaintiff  of dollars,  and  therefore  he  brings  his 

suit,  etc. 

It  is  not  sufficient  to  allege  in  the  declaration,  in  the  general 
terms  used  in  the  statute,  that  a  suit  against  the  maker  would 
have  been  unavailing.  The  declaration  must  show  why  such 
suit  would  have  been  useless,  as  that  the  maker  was  insolvent, 
or  that  the  note  was  made  without  any  consideration,  and  was 
assigned  after  maturity.' 

In  order  to  charge  the  assignor  on  the  ground  of  the  maker's 
insolvency,  it  should  appear  not  simply  that  his  liabilities  ex- 
ceeded his  means  of  payment,  but,  in  the  language  of  the 
statute,  that  the  institution  of  a  suit  against  him  would  have 
been  unavailing.''  But  where  the  maker  has  only  the  kind 
and  amount  of  property  which  is  exeippt  from  execution,  the 
assignee  is  not  bound  to  proceed  against  him  upon  the  bare 
possibility  that  the  debtor  will  not  insist  upon  the  exemption.^ 

Though  the  maker  may  have  been  solvent  at  the  maturity 
of  the  note,  yet  the  assignor  is  not  released  from  liability  un- 
less such  solvency  continued  until  a  suit  could  have  been  made 
availing.*  If  it  appears  that  by  the  use  of  proper  diligence 
the  maker  could  have  been  compelled  to  pay  any  considerable 
part  of  the  debt,  the  assignor  will  only  be  liable  for  the 
residue." 

No.  49.    Indorsee  against  indorser,  the  maker  having  absconded,  or  left 

the  state. 

(As  in  last  precedent  to  the  (*),  aiid  then  proceed  thus:)  And  the  plaintiff 
avers,  that  before  the  said  note  became  due  as  aforesaid,  to  wit,  on,  etc., 
the  said  E.  F.  absconded  and  left  the  said  State  of  Illinois,  and  from  thence 

^Humphreys  v.   Collier,!   Scam.  ^  Pierce  v.  Short,  lillLMQ;  Ham- 

53;  Haiinon  v.  Thornton,  2  Scam.  tin  v.  Reynolds,  22  111.  207. 
351;  Bledsoe  v.  Graves,  4  Scam.  383;  *  White  v.  Clayes,  32  111.  325. 

Crouch  V.  Hall,  15  111.  264.  «  White  v.  Clayes,  32  111.  325. 

2  Bestor  v.  Walker,  4  Gilm.  3;  Shu- 
feldt  V.  Sutphen,  52  111.  255. 


ASSUMPSIT.  107 

hitherto  has  remained  out  of  the  said  state;  of  which  premises  the  defend- 
ant, on,  etc.,  there  had  notice:  By  means  whereof,  etc.  {State  liability, 
promise  and  breach,  as  in  last  precedent.) 

If  the  maker  is  absent  from  the  state  at  the  time  when,  in 
order  to  fix  the  liability  of  the  assignor,  a  suit  should  be  com- 
menced against  the  maker,  or  at  the  first  term  after  the  note 
falls  due,  then  the  assignor  is  liable.'  The  assignee  is  not 
bound  to  pursue  the  maker  into  a  foreign  jurisdiction,  but  ma^' 
at  once  resort  to  the  assignor  for  payment.  The  circumstance 
that  the  maker  resided  in  another  state,  and  that  this  was 
known  to  the  assignee  when  he  received  the  note,  does  not 
vary  the  liability  of  the  assignor,  Avhich  is  the  same  whether 
the  maker  left  the  state  after  making  the  note,  or  never  lived 
in  the  state.''  But  the  supreme  court  has  said  that  the  liabil- 
ity of  an  assignor  does  not  arise  from  a  mere  temporary  ab- 
sence of  the  maker  from  the  state  Avlien  the  note  falls  due,  or 
when  the  suit  is  about  to  be  commenced.^ 

In  a  case  where  the  maker  resided  in  another  state,  at  and 
ever  after  the  time  of  the  making  of  the  note,  which  was  as- 
signed after  it  became  due,  it  was  held  that  the  contract  of  the 
assignor  was  that  he  would  pay  the  money  if  it  could  not  be 
made  of  the  maker  by  the  use  of  diligence  by  suit,  or  if  a  suit 
would  be  unavailing;  and  that  the  case  was  not  within  that 
clause  of  the  statute  which  makes  the  assignor  liable  if  the 
maker  is  not  within  the  state  when  the  note  matures.' 

The  liability  of  the  assignor  having  once  attached,  by  reason 
of  the  absence  of  the  maker  from  the  state  at  the  maturity  of 
the  note,  it  seems  that  liability  would  not  be  discharged, 
although  the  maker  was  frequently  in  the  state,  buying  goods 
and  shipping  them  away,  after  the  note  became  due,  and  be- 
fore suit  brought  against  the  assignor,  and  this  was  known  to 
the  assignee." 

'  Hilborn  v.  Ai-tus,  3  Scam.  344;  ^  Hilborn  v.  Artits,  3  Scam.  344. 

Ilason  V.  Burton,  54    111.  349;  AM-  *  Crouch  v.  Hall,  15  111.  268;  Pierce 

rich  V.  Goodell,  75  111.  453;  Barber  v.  Short,  14  111.  144. 

V.  Bell,  77  111.  490.  ^ Mason  v.  Burton,  54  111.  349. 

^Schuttler  v.  Piatt,    13    111.   418; 
Maso)i  V.  Burton,  54  111.  349. 


108  ASSUMPSIT. 

No.  50.     Payee  against  guarantor  of  promissory  note. 

{Commence  as  in  No.  37,  ante,  page  91.)    For  that  whereas  one  E.  F.,  on, 
etc. ,  in  the  county  aforesaid,  made  his  promissory  note,  and  thereby  then 

and  there  promised  to  pay, after  the  date  thereof,  to  the  plaintitf , 

or  his  order,  the  sum  of dollars,  for  value  received,  with  interest  thereon, 

etc.;  and  thereupon,  on  the  day  first  aforesaid,  in  consideration  that  the 
plaintiff,  at  the  request  of  the  defendant,  would  accept  and  receive  of  the 
said  E.  F.  the  said  note,  the  defendant,  by  his  indorsement  thereon,  there 
guaranteed  the  payment  of  the  said  sum  of  money,  and  promised  the  plaint- 
iff to  pay  him  the  same,  according  to  the  tenor  and  effect  of  the  said  note, 
if  the  said  E.  F.  should  not  so  pay  the  same.  And  the  plaintiff  avers  that 
thereupon  he,  confiding  in  the  said  undertaking  of  the  defendant,  then  and 
there  accepted  and  received  of  the  said  E.  F.  the  note  aforesaid;  and  that 
although  the  day  of  payment  in  the  said  note  specified  has  elapsed,  the  said 
E.  F.  did  not  nor  would  on  that  day,  or  at  any  other  time,  pay  to  the 
plaintiff  the  amount  of  the  said  note,  or  any  part  thereof,  but  refused  so  to 
do;  whereof  the  defendant,  on  the  day  last  aforesaid,  there  had  notice.  Yet 
the  defendant  has  not  paid  to  the  plaintiff  the  amount  of  the  said  note,  or 

any  part  thereof,  but  refuses  so  to  do:  to  the  damage  of  the  j)laintiff  of 

dollars,  and  therefore  he  brings  his  suit,  etc. 

The  liability  of  the  guarantor  of  a  promissory  note  does  not 
depend  upon  the  use  of  diligence  in  prosecuting  tlie  maker,  etc., 
nor  is  any  demand  necessary,  or  notice  of  non-payment,  to  fix 
such  liability.  Upon  the  failure  of  the  maker  to  ]my  at  the 
maturity  of  the  note,  the  holder  may  at  once  sue  the  guaran- 
tor, and  recover  the  amount  due.'  But  it  is  said  that  the 
defendant  may  discharge  himself  from  liability  by  showing 
laches  on  the  part  of  the  plaintiff,  such  as  an  omission  to  make 
demand  and  give  notice  within  a  reasonable  time,  and  a  conse- 
quent injury — the  burden  of  proof  being  on  the  defendant.^ 

In  an  action  on  a  guaranty  of  a  note,  it  is  necessary  to  aver 
and  prove  a  consideration;  but  in  the  absence  of  proof  to  the 
contrary,  the  presumption  is  that  the  guaranty  was  made 
when  the  note  was  executed,  in  which  case,  the  guaranty  be- 
ing a  part  of  the  original  transaction,  the  consideration  of  the 
note  is  the  consideration  of  the  guaranty,  and  no  new  con- 
sideration needs  to  be  shown.  AVhere,  however,  it  appears  that 
the  guaranty  was  made  after  the    note  was  delivered,  the 

J  Heaton  v.  Hnlbert,  3  Scam.  489;  111.  638;  Hooker  v.   Gooding,  86  111. 

Carroll  v.  Weld,  13  111.  682;  Klein  v.  60;  Gridley  v.  Capen,  72  111.  11. 

Currier,  14  111.  237;  Rich  v.  Hatha-  '^Heaton  v.  Hulbert,  3  Scam.   489; 

way,  18  111.  548;  Hance  v.  Miller,  31  Gage  v.  Bank,  79  111.  62. 


ASSUMPSIT.  109 

plaintiff  must  show  a  new  consideration/  A  guaranty  by 
the  payee  needs  no  new  consideration,  though  made  long 
after  the  execution  of  the  note.^  A  blank  indorsement  of  a 
promissory  note,  at  the  time  of  its  execution,  by  a  person  not 
a  party  to  the  note,  is  evidence  prima  facie  of  a  liability  as 
guarantor,  and  is  authority  to  a  holder  in  good  faith  to  write 
a  guaranty  over  the  signature.  This  presumption  may,  how- 
ever, be  rebutted.^  "Where  the  payee  or  holder  of  a  note  has 
indorsed  it  in  blank,  the  presumption  is  only  that  he  assumed 
the  liability  imposed  by  the  statute  upon  an  assignor,  and  the 
blank  may  be  filled  with  the  assignment  usuall}'  employed  for 
the  transfer  of  such  paper.*  The  general  rule  is,  that  an  in- 
dorsement in  blank  gives  authority  to  the  holder  of  the  instru- 
ment to  fill  up  the  indorsement  by  writing  over  the  signature 
anything  consistent  with  the  nature  of  the  instrument  and  the 
intention  of  the  parties.* 

Although  the  signature  of  a  third  person  on  the  back  of  a 
note  in  the  hands  of  the  payee,  is  QNv^exiCQ  prima  facie  of  the 
liability  of  such  third  person  as  a  guarantor,  yet  it  seems  that 
where  a  note  has  gone  into  circulation,  and  passed  under 
blank  indorsements,  from  holder  to  holder,  it  ought  to  be 
shown  that  the  name  of  the  person  sought  to  be  held  liable  as 
guarantor  was  on  the  note  while  in  the  hands  of  the  payee." 

A  note  payable  to  the  order  of  the  maker  has  no  validity 
until  his  name  is  indorsed  thereon;  and  another  person  writ- 

1  Carrold    v.     Weld,    13  111.    682;  v.  Taylor,  75  111.    629;   Eberhart  v. 

Klein  v.  Currier,  14  III.  237;  Rich  v.  Page,  89  111.   550;  Schnell  v.  31.  Co., 

Hathaway,  18    111.  548;  Harwood  v.  89  111.  581;  Boynton  v.  Pierce,  79  111. 

Johnson,  20  111.  367;    Joslyn  v.  Col-  146;  Stowell  v.  Raymond,^  111.  120; 

linson,  26  111.  61;    Heintz  v.  Calm,  Bank  v.  Nixon,  125   111.  615;  Kings- 

29  111.  308;  Parkhurst  v.  Fai7,73Ill.  landv.  Koeppe,  137  111.  344;    Bank 

343;  Story  on  Bills,  Sec.  458;  2  Story  v,  Nordgren,  57  111.  App.  346;  Coal 

onCont.,  Sec.  685;    Grier  v.  Cable,  Co.  v.  Crane,  138  111.   207. 

45  111.  App.  405.  ^Hance  v.  Miller,  21  111.  636. 

-  Judson  V.  Gookwin,  37  111.  286.  =  Camden  v.  McKoy,  3  Scam.  437; 

3  Camden  v.  McKoy,  3  Scam.  437;  Webster  v.  Cobb,  17   111.  459;  Hance 

Cushman  v.  Dement,   3  Scam.  497;  v.  Miller,    21    111.    636;  Boynton  v. 

Heintz  V.  Cahn,  29   Dl.  308;  Under-  Pierce,  79  111.  145;  Bank  v.  Diefen- 

wood  V.  Hossack,  38  111.   208;    Lin-  dorf,  90    111.    396;  Featherstone    v. 

coin  V.  Hinzey,  51  111.  435;  Glickauf  Hendrick,  59  111.  App.  497. 

V.  Kaufman,  73  111.  378;    Pahlman  «  Webster  v.  Cobb,  17  111.  459,  - 


110  ASSUMPSIT. 

ing  his  name  on  it  before  it  is  thus  indorsed,  undertakes  that 
when  the  note  takes  effect  his  name  shall  appear  thereon  as 
second  indorser.     His  contract  is  not  that  of  a  guarantor/ 

Where  an  assignor  of  a  note  guarantees  it,  the  holder  may 
recover  upon  the  contract  of  assignment  or  upon  the  guarant}^ 
as  he  may  choose.^  A  guarantor  is  not  liable  beyond  the  ex- 
press terms  of  his  contract,  and  a  material  alteration  of  such 
terms  Avill  avoid  it." 

An  indorsement  in  the  form  of  a  guaranty  will  pass  the  title 
and  also  bind  the  maker  as  guarantor.*  By  the  Avords,  "  1 
guarantee  the  coJhctlon  of  the  within  note,"  the  liability  of  an 
assignor  is  neither  increased  nor  diminished.  He  is  simply 
liable  as  an  assignor.^  But  where  the  payee  indorses  upon 
the  note,  ^^  I  guarantee  the  payment  of  the  within  note  at  ma- 
turity^'' he  is  liable  to  pay  the  note  at  maturity  and  the  holder 
is  under  no  obligation  to  demand  payment  of  the  maker.' 

The  guarantor  of  the  payment  of  a  promissory  note  is  not 
jointl}^  liable  with  the  maker  of  the  note.  In  such  case  the 
note  and  guaranty  are  separate  and  distinct  contracts,  and  the 
guarantor  is  not  liable  until  the  failure  of  the  maker  of  the 
note  to  pay  the  same  at  its  maturity.'  On  the  subject  of 
guaranty,  the  additional  authorities  noted  below  may  be  con- 
sulted.' 

•  Blatchfordv.  3Ellikin,  35  111.  434;  Dietrich  v.  Mitchell,  43  111.  40;  Cros- 

Kayser  v.  Hall,  85  111.  511;  Bank  v.  key  v.  Skinner,  44  111.  321;    Bying- 

Nordgren,  57  111.  A  pp.  347.  ton  v.    Gaff,  44  111.  510;   Dust  in  v. 

■'Hance  v.  Miller,  21  111.  636.  Hodgen,  47  111.    125;   Hatch  v.  Ayi- 

^  Neivlan  v.  Harrington,   24    111.  trim,  51  111.  106;  Darst  v.  Bates,  51 

206.  111.  439;    Andrus  v.   Carpenter,  52 

•^Heatonv.  Hulbert,  3  Scam.  489;  111.  171;  Gage  v.  Letvis,  68  111.  604; 

Parker  v.  Wetherell,  44  111.  App.  95.  Penny  v.  Crane,  80  HI.  244;   Hamil- 

^Judson  V.  Gookwin,  37  111.  286.  tonv.  Johnston,  82  111.  39;  Bank  v. 

6  Heaton  v.  Hulbert,  3  Scam.  489;  Frazer,    86    111.     133;     Munson    v. 

Gagex.  Bank,  79  111.  62.  Adams,   89  111.   450;    Eicketson   v, 

T  Abbott  V.  Brown,  VSim.  108;  see  Giles,  91   111.   154;    Davis  v.   Black- 

Eev.  Stat.  (1895)  1061.  ivell,  5  Bradw.  32;  King  v.  Hannah, 

»Knoebel  v.  Kircher,  33  111.    308;  6  Bradw.  495;   Edwards  v.  Shields, 

Otto  V.  Jackson,  35  111.  349;    Childs  7  Bradw.  70;  Spurck  v.  Leonard,  9 

V.  Davidson,  38111.  437;  DjotcrsoHv.  Brad.    174;     Clark  v.    Morgan,    13 

Dorrickson,    39  111.    574;     Voltz   v.  Bradw.  597;     Pool  v.    Roberts,    19 

Harris,'i01U..  155;  White  V.  Weaver,  Bradw.  438;  Johnson  \.   Glover,  19 

41  111.  409;  Allen  v.  Coffil,  42  111.  294;  111.  App.  585;   Kinsley  v.    Charnley, 


ASSUMPSIT.  Ill 

No.  61.    Payee  against  drawer,  on  an  order  not  accepted. 

{Commence  as  in  No.  37,  ante,  page  91.)  For  that  whereas  the  defendant, 
on.  etc..  in,  etc..  made  his  order  in  writing,  and  delivered  the  same  to  the 
plaintiff,  and  thereby   then   and  there  requested  one   E.  F.  to  pay  to  the 

plaintiff,  or  his  order,  the  sum  of dollars,  on  demand,  and  charge  the 

same  to  the  account  of  the  defendant:  And  the  plaintiff  avers,  that  on  the 
day  aforesaid,  he  there  presented  the  said  order  to  the  said  E.  F. ,  and  re- 
quested him  to  accept  the  same,  and  pay  the  said  sum  of  money;  but  that 
the  said  E.  F.  did  not,  nor  would  then  or  afterward  accept  the  said  oi'der, 
or  pay  the  said  sum  of  money,  or  any  part  thereof,  but  refused  so  to  do; 
whereof  the  defendant  then  and  there  had  notice:  By  means  whereof  the 
defendant  then  and  there  became  liable  to  pay  to  the  plaintiff,  on  request, 
the  said  sum  of  money;  and  being  so  liable,  the  defendant,  in  consideration 
thereof,  then  and  there  promised  the  plaintiff  to  pay  him  the  said  sum  of 
money  on  request.  Yet  the  defendant,  though  requested,  has  not  paid  to 
the  plaintiff  the  said  sum  of  money,  or  any  part  thereof,  but  refuses  so  to 

do;  to  the  damage  of  the  plaintiff  of dollars,  and  therefore  he   brings 

his  suit,  etc. 

{The  common  counts,  etc.,  as  directed  in  No.  37,  ante,  page  91,  may  be  in- 
serted, in  which  case  conclude  icith  general  breach,  as  foUoics:) 

Yet  the  defendant,  though  requested,  has  not  paid  to  the  plaintiff  the  said 
several  sums  of  money  above  specified,  or  any  or  either  of  them,  or  any  part 

thereof,  but  refuses  so  to  do;  to  the  damage  of  the  plaintiff  of dollars, 

and  therefore  he  brings  his  suit,  etc. 

No.  52.     Payee  of  a  check  against  draioer. 

{Commence  as  in  No.  37,  ante,  page  91.)  For  that  whereas  the  defendant, 
on,  etc.,  in  the  county  aforesaid,  made  his  order  in  writing,  commonly 
called  a  check,  on  a  banker,  and  directed  the  same  to  certain  persons  by  the 
name  and  style  of  Messrs.  E.  F.  and  G.    H. ,  and  thereby  required  the  said 

Messrs.  E.  F.  and  G.  H.  to  pay  to  the  plaintiff,  or  bearer,  the  sura   of 

dollars,  and  then  and  there  delivered  the  said  order  to  the  plaintiff:  And 
the  plaintiffs  avers,  that  on  the  day  aforesaid  the  said  order  was  there  pre- 
sented to  the  said  Messrs.  E.  F.  and  G.  H.  for  payment  thereof,  and  they 
were  then  and  there  requested  to  pay  the  said  sum  of  money,  according  to 
the  tenor  and  effect  of  the  said  order;  but  that  the  said  Messi-s.  E.  F.  and  G. 
H.  did  not  nor  would  then,  or  at  any  other  time,  pay  the  said  sum  of  money, 
or  any  part  thereof,  but  refused  so  to  do;  whereof  the  defend  ant  then  and 
there  had  notice:  By  means  whereof  the  defendant  then  and  there  became 
liable  to  pay  to  the  plaintiff,  on  request,  the  said  sum  of  money;  and  being 
so  liable,  the  defendant,  in  consideration  thereof,  then  and  there  promised 
the  plaintiff  to  pay  him  the  said  sum  of  money  on  request. 

{The  common  counts,  etc.,  may  be  added,  as  directed  in  last  precedent.) 

33  111.  App.  556:  Ruffner  v.  Love.  33  tcold,  37  111.  App.  616;  BanTc  v.  Bank, 

111.  App.    605:   Delemeter  v.  Kearns,  40  111.  App.  641;  Frankel  v.  Stcrn.m 

35  111.  App.  634;  Strigart  v.  Weare,  111.  App.  54 ;  Brandner  v.  Krehbs,  54 

37  111.    App.    262;  Donovan  v.  Gris-  111.  App.  653. 


112  ASSUMPSIT. 

In  order  to  fix  the  liability  of  the  drawer  on  an  inland  bill 
of  exchange,  or  check,  in  case  of  non-payment,  the  holder 
should  present  the  bill  or  check  to  the  person  or  bank  on 
which  it  is  drawn,  within  business  hours  of  the  day  next  suc- 
ceeding the  receipt  of  the  paper,  and  give  notice  of  the  dis- 
honor to  the  drawer.' 

If  the  holder  of  a  bank  check,  instead  of  demanding  its 
payment,  obtains  its  certification  by  the  bank,  he  will  thereby 
discharge  the  drawer  of  the  check  from  all  liability,  and  its 
presentment  on  the  next  business  day  after  its  issue  and  non- 
paym.ent  will  not  in  any  manner  revive  the  drawer's  liability. 
The  rule  is  different  when  the  drawer  procures  the  certifica- 
tion of  his  check  before  its  deliver}^  to  the  drawee.  In  that 
case  the  drawer'  will  be  liable  for  non-pa^mient  on  presenta- 
tion." The  giving  of  a  check  by  a  depositor  in  a  bank  oper- 
ates, at  least  after  presentment,  as  an  assignment  to  the 
holder  of  a  sufficient  amount  of  the  deposit  to  pay  the  check, 
and  is  therefore  a  definite  appropriation  of  that  sum  to  its 
pavment,  binding  upon  all  the  parties  to  the  check.^ 

DECLARATIONS  ON  INLAND  BILLS  OF  EXCHANGE. 

No.  53.    Drawer  against  acceptor,  on  a  hill  accepted  generally. 

{Commence  as  in  No.  37,  ante,  page  91.)    For  that  whereas  the  plaintiff 

(by  the  name  and  style  of )  on,  etc.,  in  the  county  aforesaid,  made 

his  bill  of  exchange,  and  directed  the  same  to  the  defendant  {styling  him 

),  and  thereby  then  and  there  requested  the  defendant  to  pay, 

after  the  date  thereof,  to  the  plaintiff,  or  his  order,  the  sum  of dollars, 

for  value  received,  with  interest  thereon,  from  the  date  of  the  said  bill,  at 

the  rate  of per  centum  per  annum;  which  said  bill  the  defendant  {by  the 

said  name  and  style  of ,)  on  the  day  first  aforesaid,  upon  sight 

thereof,  there  accepted:  By  means  whereof  the  defendant  then  and  there 
became  liable  to  pay  to  the  plaintiff  the  said  sum  of  money,  according  to 
the  tenor  and  effect  of  the  said  bill  and  of  the  said  acceptance  thereof;  and 

1  1  Parsons  on  Notes,  etc.,  446,  447;  ^  Bank  v.  Jones,  137  111.  634;  see 

Bickford  v.  Bank.  43  111.   238;  31c-  Broini  v.  Leckie,  43  111.  497;  Bank 

Donald  v.  Mosher,  23  111.  App.   206;  v.  Bank,  80  111.  212;  Bank  v.  Ind- 

Bank  v.  Cornhauser,   37  111.   App.  Banking  Co. ,  lU  IW.  483;  Hoganv. 

480;  Star  v.    Smith,    Id.  218;  Mad-  Edwards,   9  Bradw.   148;  Pabst  v. 

rferojiv.  ifeaf/(,  85  111.  App.  590.  Reeves,  43  111.  App.  154;    Bank  v. 

^Bankv.  Jones,  137  111.  634;  Bank  Retzinger,  20  Bradw.  27. 
V.  Cornhauser,  37  111.  App.  475. 


ASSUMPSIT.  113 

b&ing  so  liable,  the  defendant,  in  consideration  tliereof,  then  and  there 
promised  the  plaintiff  to  pay  him  the  said  sum  of  money,  according  to  the 
tenor  and  effect  of  the  said  bill  and  of  the  acceptance  thereof  aforesaid. 

{Add  common  counts,  etc.,  and  breach,  as  in  No.  37,  ante,  page  91,  using 
tJie  word  bill,  instead  of  note,  in  the  breach.) 

If  the  bill  is  payable  so  many  days  after  sight,  describe  it 
accordingly.  lu  that  case  the  words  in  the  breach,  "  although 
the  day  of  payment  in  the  said  bill  specified  has  elapsed,"  are 
unnecessary. 

Though  usual  to  state  the  address  of  the  bill — that  the 
drawer  "  directed  the  same  to  the  said,"  etc.,  it  seems  it  is 
unnecessary  to  do  so.  It  is,  however,  sometimes  convenient, 
for  the  purpose  of  alleging  the  name  by  which  the  drawee  is 
styled  in  the  bill,  if  he  is  misdescribed  therein.  If  the  bill  is 
not  addressed  to  the  drawee,  this  statement  should  be  omitted. 

If  the  acceptance  is  dated  on  a  day  different  from  the  date  of 
the  bill,  it  should  be  so  described.  An  acceptance  by  an  agent 
may  be  described  as  made  by  the  party  himself.'  The  pleader 
should  observe  that  the  precedents  given  are  framed  upon  bills 
as  usually  drawn;  but  as  bills  vary  in  tenor,  care  should  be 
taken  not  to  follow  the  forms  too  closely,  for  fear  of  a  vari- 
ance. The  precedents  given  of  declarations  on  promissory 
notes  will  be  useful  to  the  pleader  in  framing  declarations  on 
bills  of  exchange;  and  for  declarations  by  and  against  particu- 
lar persons,  he  is  referred  to  those  precedents. 

No.  54.    Drawer  against  acceptor,  on  his  acceptance,  varying  as  to  time 

from  bill. 

{Commence  as  in  No.  37,  ante,  page  91;  and  after  stating  the  bill,  as  in  last 
precedent,  payable  in  thirty  days  for  instance,  proceed  as  follows  :)  which 
said  bill  the  defendant,  on  the  day  first  aforesaid,  upon  sight  thereof,  there 
accepted,  payable  ninety  days  after  the  date  of  the  said  bill:  By  means 
whereof  the  defendant,  on  the  day  first  aforesaid,  there  became  liable  to 
pay  to  the  plaintiff  the  amount  of  the  said  bill,  according  to  the  tenor  and 
effect  of  tlie  said  acceptance  thereof;  and  being  so  liable,  the  defendant,  in 
consideration  thereof,  then  and  there  promised  the  plaintiff  to  pay  him  the 
said  amount,  according  to  the  tenor  and  effect  of  the  acceptance  aforesaid. 

{Add  the  common  counts,  etc, ,  as  in  No.  37  ante,  page  91.  The  breach  will 
be  as  follows:) 

Yet  although  the  day  of  payment  in  the  said  acceptance  specified  has 

'  Chit,  on  Bills,  357. 
8 


11-i  ASSUMPSIT. 

elapsed,  the  defendant  has  not  paid  to  the  plaintiff  the  amount  of  the  said 
bill,  or  any  part  thereof,  but  refuses  so  to  do;  nor  has  the  said  defendant, 
though  requested,  paid  to  the  plaintiff  the  several  other  sums  of  money 
above  specified,  or  any  or  either  of  them,  or  any  part  thereof,  but  refuses 
to  pay  the  same;  to  the  damage  of  the  plaintiff  of dollars,  and  there- 
fore he  brings  his  suit,  etc. 

No.  55.    Drawer  against  acceptor,  on  a  hill  payable  to  a  third  person,  and 
returned  to  and  taken  up  by  drawer. 

{Commence  as  in  No.  37,  ante,  pagre  91.)  For  that  whereas  the  plaintiffs, 
on,  etc.,  in  the  county  aforesaid,  made  their  bill  of  exchange,  and  de- 
livered the  same  to  Messrs.  J.  A.  &  Co. ,  and  thereby  then  and  there  re- 
quested the  defendants  to  pay, after  the  date  thereof,  to  the  said 

Messrs.  J.  A.  &  Co.,  or  their  order,  the  sum  of dollars,  for  value  re- 
ceived; which  said  bill  the  defendants,  on  the  day  ^rsf  aforesaid,  upon  sight 
thereof,  there  accepted:  And  the  plaintiffs  aver,  that  when  the  said  bill 
became  due,  to  wit,  on,  etc.,  the  same  was  there  presented  to  the  defendants 
for  payment  thereof,  and  they  were  then  and  there  requested  to  pay  the 
said  sum  of  money,  according  to  the  tenor  and  effect  of  the  said  bill,  and 
of  their  acceptance  thereof  aforesaid;  but  that  the  defendants  did  not  nor 
would  then,  or  at  any  time  before  or  afterward,  pay  the  amount  of  the  said 
bill,  or  any  part  thereof,  but  refused  so  to  do;  and  thereupon  the  said  bill 
was  then  and  there  returned  to  the  plaintiffs  for  non-payment  thereof,  and 
they  were  called  upon  and  obliged  to  pay,  and  did  then  and  there  pay,  the 
amount  of  the  said  bill  to  the  said  Messrs.  J.  A.  &  Co. ,  whereof  the  defend- 
ants then  and  there  had  notice:  By  means  whereof  the  defendants  then  and 
there  became  liable  to  pay  to  the  plaintiffs,  on  request,  the  amount  of  the  said 
bill;  and  being  so  liable,  the  defendants,  in  consideration  thereof,  then  and 
tliere  promised  the  plaintiffs  to  pay  them  the  said  amount  on  request. 

{Add  the  common  counts,  etc.,  as  in  No.  37,  ante,  page  91.  The  breach 
will  he  as  follows:) 

Yet  the  defendants,  though  requested,  have  not  paid  to  the  plaintiffs  the 
amoimt  of  the  said  bill,  or  any  part  thereof,  or  the  several  other  sums  of 
money  above  specified,  or  any  or  either  of  them,  or  any  part  thereof,  but 
refuse  so  to  do;  to  the  damage  of  the  plaintiffs  of dollars,  and  there- 
fore they  bring  their  suit,  etc. 

If  the  plaintiff  has  been  compelled  to  pay  to  any  other 
holder  than  the  payee  of  the  bill,  the  fact  of  payment  should 
be  averred  accordingly.  The  averment  of  presentment  to  the 
defendant,  he  being  the  acceptor,  may  perhaps  not  be  strictly 
necessary,'  and  should  not  be  made  unless  it  can  be  proved. 
It  is  certainly  necessary  to  show  that  the  defendant  did  not 

»  Bank  v.   Smith,  11  Wheat.  171;  Foden  v.  Sharp,  4  Johns.  183. 


ASSUMPSIT.  115 

pay  the  bill,  and  that  it  was  returned  to  the  plaintiff,  as  the 
latter  has  no  title  to  it  except  by  virtue  of  those  facts.' 

It  is  not  necessary  to  state  the  names  of  partners  who  are 
parties  to  a  bill  of  exchange  or  promissory  note,  unless  thev 
are  plaintiffs  or  defendants.  Thus  a  bill  or  note  mav  be 
alleged  to  have  been  made  by  "  certain  persons  using  the  style 
and  firm  of  John  Smith  &  Co.,"  or  to  have  been  payable  to 
"certain  persons  by  the  name  and  style  of  William  Jones  & 
Co."  (or,  it  seems,  simply  by  "  Smith  &  Co.,"  or  to  "  William 
Jones  (fe  Co." );  and  thereafter  the  makers,  etc.,  may  be  de- 
scribed throughout  as  "the  said  drawers  of  the  said  bill,"  or 
"  payees,"  etc.,  as  the  case  may  be.^ 

No.  56.    Payee  against  acceptor,  on  bill  accepted  generally. 

(Commence  as  in  No.  37,  ante,  page  91.)  For  that  whereas  one  E.  F.,  on, 
etc.,  in  the  county,  aforesaid,  made  his  bill  of  exchange,  and  delivered  the 
same  to  the  plaintiff,  and  thereby  then  and  there  requested  the  defendant 

to  pay, after  the  date  thereof,  to  the  plaintiff,  or  his  order,  the 

sum  of  dollai-s,  for  value  received;  which  said  bill  the  defendant, 

on  the  day  first  aforesaid,  upon  sight  thereof,  there  accepted:  By  means 
whereof  the  defendant  then  and  there  became  liable  to  pay  to  the  plaintiff 
the  said  sum  of  money,  according  to  the  tenor  and  effect  of  the  said  bUl 
and  of  the  said  acceptance  thereof:  and  being  so  liable,  the  defendant,  in 
consideration  thereof,  then  and  there  promised  the  plaintiff  to  pay  him  the 
said  sum  of  money,  according  to  the  tenor  and  effect  of  the  said  bill  and  of 
the  acceptance  thereof  aforesaid. 

{Add  the  money  counts,  etc.,  as  in  No.  40,  ante,  page  94,  using  the  word 
Bn:,L,  instead  of  note,  in  the  breach.) 

No.  57.    First,  or  subsequent,  indorsee  against  acceptor. 

(Commence  as  in  No.  37,  ante,  page  91.)  For  that  whereas  one  E.  F.,  on 
etc.,  in,  etc.,  made  his  bill  of  exchange,  and  delivered  the  same  to  one  G.  H., 

and  thereby  then  and  there  requested  the  defendant  to  pay, after 

the  date  thereof,  to  the  said  G.  H. ,  or  his  order,  the  sum  of dollars,  for 

value  received;  which  said  bill  the  defendant,  on  the  day  first  aforesaid, 
upon  sight  thereof,  there  accepted;  and  thereupon  the  said  G.  H.  then  and 
there  indorsed  and  delivered  the  said  bill  to  one  F.  K.,  ivho  thereupon  then 
and  there  indorsed  and  delivered  the  same  to  the  plaintiff:  By  means  whereof 
the  defendant  then  and  there  became  liable  to  pay  to  the  plaintiff  the  said 
sum  of  money,  according  to  the  tenor  and  effect  of  the  said  bill  and  of  the 
said  acceptance  thereof;  and  being  so  liable,  the  defendant,  in  consideration 

'1  Swan's  Pr.  240;  2  Chit.  PI.  241,  note;  Bagley  on  Bills,  264;  Case 
147,  n.  a.  v,  Hefner,  10  Ohio  180. 

2  2  Chit.   Pi.  150;    1  Swan's   Pr. 


116  ASSUMPSIT. 

tliereof,  then  and  there  promised  the  plaintiff  to  pay  him  the  said  sum  of 
monej%  according  to  the  tenor  and  effect  of  the  said  bill  and  of  the  accept- 
ance thereof  aforesaid. 

(Add  the  money  counts,  etc.,  as  in  No.  40,  ante,  2^(^9^  ^4,  using  the  word 
BILL,  instead  of  note,  in  the  breach.) 

No.  5S,    Payee  against  drawer  of  bill,  on  default  of  acceptance. 

{Commence  as  in  No.  37,  ante,  page  91.)  For  that  whereas  the  defendant 
on,  etc.,  in  the  county  aforesaid,  made  his  bill  of  exchange,  and  delivered 
t^ie  same  to  the  plaintiff,  and  thereby  then  and  there  requested  one  E.  F.  to 

pay, after  the  date  thereof,  to  the  plaintiff,  or  his  order,  the  sum 

of dollars,  for  value  received:    And  the  plaintiff  avers,  that  on,  etc., 

the  said  bill  was  there  presented  to  the  said  E.  F.,  for  his  acceptance  there- 
of, and  he  was  then  and  there  requested  to  accept  the  same;  but  that  the 
said  E.  F.  did  not  nor  would  then,  or  at  any  time  afterward,  accept  the 
said  bill,  or  pay  the  amount  of  the  same,  or  any  part  thereof,  but  refused 
so  to  do;  (*)  of  which  premises  the  defendant  then  and  there  had  notice: 
By  means  whereof  the  defendant  then  and  there  became  liable  to  pay  to  the 
plaintiff,  on  request,  the  amount  of  the  said  bill;  and  being  so  liable,  the 
defendant,  in  consideration  thereof,  then  and  there  promised  the  plaintiff 
to  pay  him  the  said  amount  on  request. 

(If  the  drawer  had  no  effects  in  the  hands  of  the  draivee,  and  notice  of 
non-acceptance  can  not  be  proved,  add  a  count  like  the  next  form,  and  also 
add  counts  on  the  consideration  of  the  bill,  and  the  money  counts,  etc.,  as 
directed  in  No.  37,  ante,  page  91.     The  breach  will  be  as  follows:) 

Yet  the  defendant,  though  requested,  has  not  paid  to  the  plaintiff  the 
amount  of  the  said  bills,  or  either  of  them,  or  any  part  thereof,  or  the 
several  other  sums  of  money  above  specified,  or  any  or  either  or  any  part 
of  the  same,  but  refuses  so  to  do;  to  the  damage  of  the  plaintiff  of dol- 
lars, and  therefore  he  brings  his  suit,  etc. 

No.  59.    Payee  against  drawer — Defendant  had  no  effects  in  draicer's  hands. 

First  count  same  as  last  precedent;  second  count  same  as  far  as  the  aster- 
isk, and  then  proceed  as  follows:)  And  the  plaintiff  avers,  that  at  the  time 
of  the  making  of  the  last  mentioned  bill,  and  from  thence  until  and  at  the 
time  when  the  same  was  so  presented  to  the  said  E.  F.  for  his  acceptance 
thereof,  as  aforesaid,  he,  the  said  E.  F.,  had  not  in  his  hands  any  effects  of 
the  defendant,  nor  had  he,  the  said  E.  F. ,  received  any  consideration  from 
the  defendant  for  the  acceptance  or  payment  by  him,  the  said  E.  F.,  of  the 
last  mentioned  bill,  nor  has  the  defendant  sustained  any  damage  by  reason 
of  his  not  having  had  notice  of  the  non-acceptance  of  the  same  by  the  said 
E.  F. ;  of  which  premises  the  defendant,  on  the  day  last  aforesaid,  there  had 
notice:    By  means  whereof,  etc. 

(State  liability,  and  promise  to  pay  on  request,  as  in  last  precedent.) 

No.  60.    Payee  against  drawer,  on  default  of  payment. 
(Commence  as  in  No.  37,  ante,  page  91.)    For  that  whereas  the  defendant, 
on,  etc.,  in  the  county  aforesaid,  made  liis  bill  of  exchange,  and  delivered 


ASSUMPSIT  117 

the  same  to  the  plaintiff,  and  thereby  then  and  there  requested  one  E.  F.  to 

pay, after  the  date  thereof,  to  the  plaintiff,  or  his  order,  the  sum 

of dollars,  for  value  received;  which  said  bill  the  said  E.  F.,  on  the  day 

first  aforesaid,  upon  sight  thereof,  there  accepted:  And  the  plaintiif  avers 
that  when  the  said  bill  became  due,  to  wit,  on,  etc. ,  the  same  was  there 
presented  to  the  said  E.  F.  for  payment  thereof,  and  he  was  then  and  there 
requested  to  pay  the  said  sum  of  money,  according  to  the  tenor  and  effect 
of  the  bill;  but  that  the  said  E.  F.  did  not  nor  would  then,  or  at  any  time 
before  or  afterward,  pay  the  amount  of  the  said  bill,  or  any  part  thereof, 
but  refused  so  to  do;  of  which  premises  the  defendant  then  and  there  had 
notice:    By  means,  etc. 

(State  defendant's  liability,  and  promise  to  pay  the  amount  of  the  hill  on 
request.  If  doubtfid  whether  due  notice  to  defendant  of  non-payment  can 
he  proved,  and  he  had  no  effects  in  hands  of  dratvee,  insert  a  count  like  the 
last  precedent.  No.  59,  averring  that  "  at  the  time  of  the  making  of  the  last- 
mentioned  bill,  and  from  thence  until  and  at  the  time  when  the  same  was 
so  presented  to  the  said  E.  F.  for  payment  thereof,"  the  defendant  had  no 
effects,  etc.;  and  add  common  counts,  etc.,  and  hreach,  as  suggested  in 
No.  58.) 

Other  counts  may  be  inserted,  according  to  the  circumstances, 
viz.:  a  count  alleging  that  the  defendant  dispensed  with  pre- 
sentment for  payment;  a  count  alleging  that  the  drawee  could 
not  be  found;  *  and  one  averring  that  the  drawee  was  dead.^ 
It  seems  that  the  averment  of  acceptance  in  the  above  pre- 
cedent, though  usual,  is  unnecessary,  and  should  be  omitted 
if  there  is  any  doubt  as  to  the  proof  of  the  acceptance.^ 

Where  sufficient  notice  to  the  drawer  of  non-payment  is  not 
proved,  the  bill  may  still  be  admitted,  and  authorize  a  recovery, 
under  the  common  money  counts,  if  the  evidence  shows  a  waiver 
of  notice,  or  that  the  defendant  had  no  funds  in  the  hands  of 
the  drawee,*  or,  it  is  presumed,  if  any  other  matter  appears, 
sufficient  to  excuse  notice. 

To  charge  the  drawer  of  a  bill  of  exchange  by  the  payee, 
upon  the  ground  of  non-acceptance  or  non-payment,  it  is  usually 
essential  that  proof  be  made  of  prompt  notice  to  the  drawer 
of  such  non-payment  or  non-acceptance,  as  the  case  may  be. 
Notice  to  the  drawer  of  a  bill  of  exchange  of  its  non-accept- 
ance or  non-payment  by  the  drawee  is  not  essential,  when  the 

1 2  Chit.  PJ.  160;  1  Swan's  Pr.  247,  ^  2  Chit.  PI.  158;  1  Swan's  Pr.  243. 

248.  ^Broicer  v.  Rupert,  24  111.  182, 

2 1  Swan's  Pr.  248. 


118  ASSUMPSIT. 

drawer  is  so  situated  that  he  can  not  be  prejudiced  by  the 
want  of  notice. 

\yhen  a  drawer  of  a  bill  of  exchano^e  in  good  faith  believes 
that  he  has  funds  in  the  hands  of  the  drawee  to  meet  the  bill, 
though  in  fact  he  may  not  have  such  funds,  he  is  entitled  to 
prompt  notice  of  the  non-acceptance  or  non-payment,  and  if 
such  notice  is  not  given  he  will  not  be  liable  to  the  payee.  In 
such  case  the  law  does  not  require  the  drawer  to  show  that  he 
has  been  actually  injured  by  the  want  of  notice,  but  only  that 
he  may  have  been  so  injured.' 

The  leading  additional  cases  in  the  supreme  and  appellate 
courts  of  Illinois,  relating  to  bills  of  exchange,  are  noted 
below.^ 

ON  WAEEANTIES. 

No.  61.      On  a  warranty  of  a  horse  to  be  sound. 

(Commenceas  in  No.  40,  ante,  pnge  94.)  For  that  whereas  on,  etc.,  in 
the  county  aforesaid,  in  consideration  that  the  plaintiff,  at  the  request  of 
the  defendant,  would  buy  of  the  defendant  a  certain  horse,  at  a  certain 

price,  to  wit,  the  sum  of  dollars,  to  be  therefor  paid  by  the  plaintiff, 

the  defendant  promised  the  plaintiff  that  the  said  horse  then  was  sound; 
and  thereupon  the  plamtiff,  confiding  in  the  said  promise  of  the  defend- 

nVelchv.   Mfg.  Co. ,  83  111.  579.  v.   Woodhull,  29  111.    92;  Curtis   v. 

•^'Bradley  v.  Morris,  3  Scam.  1835  Marrs,  29   111.  508;   Hodgen  v.  La- 

Kaskaskia  v.  Shannon,  1  Gilm.  15;  iham,  30  111.  188;  Ins.  Co.  v.  Tincher, 

State   Bank  v.    Stanton,    2    Gilm,  30     111.    399;     Gillilan    v.     Myers, 

352;    Strawbridge    v.    Robinsoii,    5  31   111.  525;    Burnap    v.  Cook,    32 

Gilm.  471;  Dunlap  x.  Buckingham,  111.  168;  Jones  v.  Bank,  34  111.  313; 

16  111.  109;  Miller  v.  Lumsden,  16  111.  Kupfer  v.  Bank,  34  111.  328;    Strong 

161;  Adams    v.   King,   16  111.    169;  v.  King,  S5  III.  Q;   Mason  y.  Dousay, 

R.  R.  Co.   V.  Neil,  16  111.  269;  Bond  35  111.  424;  Walker  v.  Rogers,  40  111. 

V.  Bragg,   17  111.  69;  McAllister  v.  278;     Wood   v.    Price,   46  111.   435; 

Smith,  17     111.    328;    Harivood  v.  Rogers  v.    Gallagher,    49    111.   182; 

Tucker,  18  111.  544;    Cook  v.   Ren-  Sturgesv. Bank, 49111.  220;  Phelpsv. 

ick,  19  111.  598;   Cronise  v.  Kellogg,  Northrup,  56  111.  156;  Ray  v.  Fatdk- 

20111.  11;  Curtis  v.  Martin,   20  111.  ner,  73  111.  469;  Nowak  Y.Stone  Co., 

557;   Diversy   v.  Moore,  22  111.  331;  78111.  307;  Montelius  v.  Charles,  76 

Diversy  v.  Loeb,  22  111.  394;  Earll  v.  111.  303;  Givens  v.  Bank,  85  111.  442; 

Mitchell,     22    111.   530;    Sturges    v.  Wood  v.  Surrells,  89  111.  107;   Bank 

Bank,  49  111.  220;  Lowe  v.   Bliss,   24  v.  Diefendorf,  90  111.  396;  Hardy  v. 

111.  168;   Brower  v.  Rupert,   24  111.  Ross,  4  Bradw.  501;  Quinn  v.Han- 

182;    Tobey  v.   Berley,   26  111.    426;  ley,   5  Bradw.  51;  Haines  v.  Nance, 

Kupperv.  Marc,  28  lU.  388;  Herring  52  111.  App.  406. 


ASSUMPSIT.  1 19 

ant,  then  and  there  bought  the  said  horse  of  the  defendant  and  paid 
him  therefor  the  said  sum  of  money.  Yet  the  defendant  did  not  regard 
his  said  promise,  but  thereby  deceived  and  defrauded  the  plaintiff,  in  this, 
to  wit,  that  the  said  horse,  at  the  time  of  the  making  of  the  said  prom- 
ise of  the  defendant,  was  not  sound,  but  on  the  contrary  thereof  was  at 
that  time  unsound;  whereby  the  said  horee  there  became  and  was  of  no 
value  to  the  plaintiff,  and  the  plaintiff  has  there  been  put  to  great  charges 
and  expenses,  amounting  to  a  large  sum,  to  wit,  - —  dollars,  in  and  about 
the  feeding,  keeping,  and  taking  care  of  the  said  horse. 

{If  only  a  part  of  the  price  was  j)aid,  aver  that  the  plaintiff  "  paid  him 

therefor  the  sum  of dollars,  part  of  the  said  price,  and  then  and  there 

promised  the  defendant  to  pay  him  the  residue  thereof  on  request,"  or 
"  three  months  after  that  date,"  as  the  case  may  be.) 

{Second  count.)  And  for  that,  whereas,  also,  on  the  day  aforesaid,  in  the 
county  aforesaid,  in  consideration  that  the  plaintiff,  at  the  request  of  the 
defendant,  had  then  and  there  bought  of  the  defendant  a  certain  other 

horse,  at  a  certain  other  price,  to  wit,  the  sum  of dollars,  and  had  then 

and  there  paid  that  sum  to  the  defendant  for  the  last-mentioned  horse,  the 
defendant  promised  the  plaintiff  that  the  last-mentioned  horse,  at  the  time 
of  the  said  sale  thereof,  was  sound.  Yet  the  defendant  did  not  regard  his 
last-mentioned  promise,  but  thereby  deceived  and  defrauded  the  plaintiff, 
in  this,  to  wit,  that  the  last-mentioned  horse,  at  the  time  of  the  said  sale 
thereof,  was  not  sound,  but  on  the  contrary  thereof  was  then  unsound; 
whereby  the  same  horse  there  became  and  was  of  no  use  or  value,  etc. ,  etc. 
{as  in  the  first  count). 

{A  third  count  may  be  added,  like  the  second,  omitting  the  tt^ords  in 
italics;  and  add  a  count  for  horse-keep,  if  there  was  any  contract  to  that 
effect,  and  the  money  counts;  and  conclude  as  folloivs:) 

Wherefore  the  plaintiff  says  that  he  is  injured,  and  has  sustained  dam- 
age to  the  amount  of dollars,  and  therefore  he  brings  his  suit,  etc. 

The  particular  description  of  unsoundness  is  not  required  to 
be  stated,  it  being  a  rule  in  pleading  that  the  breach  may  in 
general  be  assigned  in  the  negative  of  the  words  of  the  con- 
tract.^ The  above  forms  may  be  readily  adapted  to  any  case 
of  warranty  of  a  horse,  as  a  warranty  that  the  animal  was 
"free  from  vice,"  or  was  "sound,  kind,  and  would  go  well  in 
single  or  double  harness,"  etc.  The  warranty  must  be  de- 
scribed accurately,  and  must  be  co-extensive  with  the  breach.* 

No.  62,    On  warran  ty  of  hops  sold  by  sample. 

{Commence  as  in  No.  36  ante,  page  91.)  For  that  whereas  on,  etc.,  in  the 
county  aforesaid,  in  consideration  that  the  plaintiff  would  buy  of  the  de- 

1  Com.  Dig.  PI.  C.  45;  1  Chit.  PI.  ^Chit.  PI.  281,  note  p. 

291. 


120  ASSUMPSIT. 

fendant,  at  his  request,  five  pockets  of  hops,  at  a  certain  price,  to  wit, 

dollars,  the  defendant  promised  the  plaintiff  to  deliver  to  him  the  said  five 
pockets  of  hops,  and  that  the  hops  contained  in  the  said  five  pockets,  re- 
spectively, should  all  be  of  like  goodness  and  quality  with  certain  samples 
thereof,  then  and  there  shown  by  the  defendant  to  the  plaintiff,  that  is  to 
say,  a  sample  of  the  contents  of  each  of  the  said  five  pockets  :  And  the 
plaintiff  avers  that  thereupon  he,  confiding  in  the  said  promise,  then  and 
there  bought  of  the  defendant  the  said  five  pockets  of  hops,  at  the  price 
aforesaid;  and  the  defendant  afterward,  to  wit,  on,  etc.,  there  delivered  to 
the  plaintiff  five  pockets  of  hops,  as  and  for  hops  of  like  goodness  and 
quality  with  the  respective  samples  so  as  aforesaid  shown  to  the  plaintiff. 
Yet  the  defendant  did  not  regard  his  said  promise,  but  thereby  deceived  and 
defrauded  the  plaintiff  in  this,  to  wit,  that  the  hops  contained  in  the  five 
pockets,  respectively,  so  as  aforesaid  delivered  to  the  plaintiff,  at  the  time 
of  the  said  delivery  thereof  were  not  all  of  like  goodness  and  quality  with 
the  respective  samples  aforesaid,  but  on  the  contrary  thereof  the  hops  con- 
tained in  each  and  every  one  of  those  five  pockets  were  then  all  of  greatly 
inferior  goodness  and  quality  to  the  respective  samples  so  as  aforesaid 
shown  to  the  plaintiff,  and  were  bad,  damaged  and  unsalable;  whereby  the 
plaintiff  lost  the  benefit  of  selling  the  same,  etc.,  and  gaming  large 
profits,  etc. 

(State  any  special  damage  there  may  have  been,  as  freight  paid,  insur- 
ance, etc.) 

{Second  count.  Hops  sold  as  good,  etc.)  And  for  that  whereas  also,  on 
the  day  first  aforesaid,  in  the  county  aforesaid,  in  consideration  that  the 
plaintiff  would  buy  of  the  defendant,  at  his  request,  five  other  pockets  of 

hops,  at  a  certain  price,  to  wit, dollars,  the  defendant  promised  the 

plaintiff  to  deliver  to  him  the  last  mentioned  hops,  and  that  the  same  should 
be  good,  sound  and  merchantable  hops:  And  the  plaintiff  avers  that  there- 
upon he,  confiding  in  that  promise,  then  and  there  bought  of  the  defendant 
the  last  mentioned  hops,  at  the  price  aforesaid;  and  the  defendant  after- 
ward, to  wit,  on,  etc.,  there  delivered  to  the  plaintiff  five  pockets  of  hops, 
88  and  for  good,  sound  and  merchantable  hops.  Yet  the  defendant  did  not 
regard  his  promise  last  aforesaid,  but  thereby  deceived  and  defrauded  the 
plaintiff,  in  this,  to  wit,  that  the  last  mentioned  hops,  at  the  time  of  the 
said  delivery  thereof  to  the  plaintiff,  were  not  good,  sound  and  merchanta- 
ble hops,  but  on  the  contrary  thereof  were  then  and  there  bad,  damaged 
and  unmerchantable;  whereby  the  plaintiff  lost  the  benefit  of  selling  the 
same,  etc.  (as  in  first  count). 

(Add  the  money  counts,  and  conclude  asin  last  precedent,  No.  61.) 

In  the  case  from,  which  the  above  precedent  is  drawn/  it  was 
decided  that  when  there  is  a  latent  defect  in  a  coram odit\^,  un- 
known to  the  seller,  and  he  sells  with  warranty  of  goodness 
equal  to  a  sample,  he  is  not  liable  on  such  warranty  for  any 

1  Parkinson  v.  Lee,  2  East  314, 


ASSUMPSIT.  121 

damage  resulting  from  such  latent  defect;  nor  will  the  law 
raise  an  implied  promise,  in  such  case,  that  the  commodity  is 
sound  and  merchantable,  though  a  fair  price  is  given  for  the 
same;  since  no  fraud  is  imputable  to  the  seller.  In  order  to 
bind  the  seller,  there  should  be  an  exjpress  warranty  of  the 
soundness. 

It  would  seem  preferable,  in  a  count  like  the  first  in  the 
above  precedent,  to  allege  that  the  defendant  promised  the 
plaintiff  that  the  merchandise  "  should  be  of  like  goodness  and 
quality  with  a  certain  sample  then  and  there  shown  by  the 
defendant  to  the  plaintiff  as  and  for  a  sample  of  "  the  merchan- 
dise sold. 

The  principal  Illinois  cases  on  the  subject  of  warranty  are 
noted  below.' 

BY  LANDLORD    AGAINST   TENANT. 

No.  63.    Landlord  against  tenant  from  year  to  year,  on  implied  contract  to 
use  farm  in  husbandlike  manner,  and  according  to  custom  of  country. 

{Commence  as  in  No.  36,  ante,  page  91.)  For  that  whereas  the  defendant, 
on,  etc. ,  in  the  county  aforesaid,  was  tenant  to  the  plaintiff  of  a  certain 
farm  there  situate,  and  in  consideration  thereof  the  defendant  then  and 
there  promised  the  plaintiff  to  manage,  use  and  cultivate  the  said  farm 
during  the  said  tenancy,  in  a  good  and  husbandlike  manner,  and  according 
to  the  custom  of  the  country  where  the  said  farm  is  so  situate:  And  the 
plaintiff  avers  that  the  defendant  there  continued  tenant  to  the  plaintiff  of 
the  said  farm,  from  the  time  of  the  making  of  his  said  promise  until  the 

day  of ,  in  the  year  18—  (or    "hitherto").     Yet  the  defendant 

did  not  nor  would,  during  the  said  tenancy,  manage,  use  or  cultivate  the 
said  farm  in  a  good  and  husbandlike  manner,  and  according  to  the  custom 
of  the  country  where  the  same  is  so  situate;  but  on  the  contrarv  thereof 
after  the  making  of  the  said  promise,  and  during  the  said  tenancy,  to  wit' 

'  England  v.  Clark,  4  Scam.  486;  565;  Koerper  v.  Jung,  33  111.  App. 

VanBuskirk  v.  Murden,  22  111.  446;  144;  Rumming  v.   Caldwell,  43  111, 

Howard  v.    Cormick,    24    111.    455;  App,   175;   Kingman   v.  Decker,  43 

Marckle  v.  Haskins,  27  111.  382;  Ap-  111.  App.  303;  Kempx.  Freeman,  42 

plfbee  V.  Rumery,  28  111.  280;  Linton  111.  App.  500;  Miller  v.  Low,  44  111. 

V,    Porter,    31    111.    107;    Kohl    v.  App.    630;   Kemp  v.  3Iiller,  46    111. 

Lindley,  39  111.  195;  Milk  v.  Moore,  App.  2l3;  Aidtman  v.  Witherow,  48 

39  m.  584;  Schmidt  v.  Ins.  Co.,  41  111.  App.  492;  Lanzv.  Wachs,  50111. 

Ill    295;  Hanson  v,    Busse,   45   111.  App.  262;  Aidtman  v,  Wirth,  54  111, 

496;    Woodriiff  v,    Thome,    49  111.  App.    18;    Edwards  v.   Dillon,    147 

88;    Robinson    v.   McNeill,    51    111.  111.  14.     See,  also,  cases  cited  in  ob- 

225;    Osborn    v.    Flood,   11  Bradw.  servations  upon  plea  of  breach  of 

408;  EveHngliam  v.  Lord,  19  111.  App.  warranty,  No.  126,  post. 


122  ASSUMPSIT. 

in  the  year  18 —  (  or  "  in  the  successive  years  18 —  and  18 — "),  there  wrong- 
fully (here  state  any  act  or  omission  complained  of),  contrary  to  the  course 
of  good  husbandry  and  the  custom  of  the  country  where  the  said  farm  is 
situate  as  aforesaid,  and  contrary  to  the  said  promise  of  the  defendant. 

(Second  breach.)  And  the  plaintiff  further  says  that  the  defendant,  after 
the  making  of  his  said  promise  and  during  the  said  tenancy,  did  not  nor  would 
(here  state  any  other  omission),  as  the  defendant,  according  to  the  course  of 
good  husbandry,  ought  to  have  done;  but  on  the  contrary  thereof,  the  de- 
fendant during  that  time,  to  wit,  on  the  day  first  aforesaid,  and  at  divers 

other  times  between  that  day   and  the day  of aforesaid,  there 

wrongfully  Qiere  state  the  act  done  in  place  of  the  act  which  ought  to  have 
been  done),  contrary  to  the  course  of  good  husbandry  and  the  custom  of  the 
said  country,  and  contrary  to  the  said  promise  of  the  defendant. 

{It  may,  in  some  cases,  be  advisable  to  add  a  second  cotint,  similar  to  the 
first,  but  leaving  out  what  relates  to  the  custom  of  the  country;  and  also  to 
insert  a  third  count,  stating  the  promise  as  in  the  first,  and  a  general  breach 
of  good  husbandry,  without  stating  the  jmrticidars.  Any  special  damage  is 
of  course  to  be  averred;  and  if  the  plaintiff  has  been  forced  to  expend  money, 
add  counts  for  money  paid,  etc.     Conclude  as  in  No.  61,  ante.) 

No.  64.    Against  tenant  for  keeping  and  leaving  premises  out  of  repair. 

{Commence  as  in  No.  36,  ante,  page  91.)  For  that  whereas  on,  etc.,  in. 
etc.,  in  consideration  that  the  plaintiff,  at  the  request  of  the  defendant, 
would  let  to  the  defendant  a  certain  messuage,  with  the  appurtenances, 
there  situate,  to  hold  the  same  to  the  defendant,  as  tenant  thereof  to  the 

plaintiff,  to  wit,  from  the  day  of then  Aext,  for  one  whole  year, 

and  so  from  year  to  year,  so  long  as  the  plaintiff  and  the  defendant  should 
respectively  please,  the  defendant  promised  the  plaintiff  that  he,  the  defend- 
ant, would,  during  the  continuance  of  such  tenancy,  keep  the  said  messuage, 
with  the  appurtenances,  in  tenan table  repair,  order  and  condition:  And 
the  plaintiff  avers  that  thereupon  he,  confiding  in  the  said  promise  of  the 
defendant,  on  the  day  first  aforesaid,  there  let  the  said  messuage,  with  the 
appurtenances,  to  the  defendant,  for  the  time  and  upon  the  terms  aforesaid, 
and  that  the  defendant  was  tenant  to  the  plaintiff  of  the  said  messuage,  with 
the  appurtenances,  under  and  by  virtue  of  the  said  letting,  from  the  time  of 

making  his  promise  aforesaid  until  and  upon  the day  of,  etc.    Yet  the 

defendant  did  not  nor  would,  during  the  continuance  of  the  said  tenancy, 
keep  the  said  messuage,  with  the  appurtenances,  in  tenantable  repair,  order 
and  condition;  but  on  the  contrary  thereof,  the  defendant,  during  the  con- 
tinuance of  his  said  tenancy,  to  wit,  on  the  day  first  above  mentioned,  and 
from  thence  until  and  upon  the  said,  etc.,  wrongfully  suffered  the  said  mes- 
suage, with  the  appurtenances,  to  be,  and  the  same  were,  during  all  that 
time,  ruinous,  prostrate,  foul  and  in  untenantable  repair,  order  and  condi- 
tion, for  want  of  needful  repairing,  cleansing  and  amending  thereof;  and  on 
the  day  last  aforesaid  the  defendant  there  delivered  up  to  the  plaintiff  the 
said  premises,  so  ruinous,  prostrate,  broken  down,  foul  and  in  bad  and  unten- 
antable order,  repair  and  condition  as  aforesaid,  contrary  to  the  said  prom- 
ise of  the  defendant. 


ASSUMPSIT.  123 

ON  PROMISES    TO   MAKKY. 

No.  65.     On  promise  to  marry  on  request. 

{Commence  as  in  No.  36,  ante,  page  91.)  For  that  whereas  on,  etc.,  in, 
etc.,  in  consideration  that  the  plaintiff,  being  then  unmarried,  had  then 
and  there  promised  the  defendant,  at  his  request,  to  marry  him,  when  she, 
tlie  plaintiff,  should  be  thereto  requested,  the  defendant  promised  the 
plaintiff  to  marry  her,  when  he  should  be  thereto  requested:  And  the 
plaintiff  avers  that  she,  confiding  in  the  said  promise  of  the  defendant,  has 
always  from  thence  hitherto  remained  and  still  is  unmarried,  and  has  been 
for  all  the  time  aforesaid,  and  still  is  there  ready  and  willing  to  marry 
him.  Yet  although  the  plaintiff,  after  the  making  of  the  said  promise  of 
the  defendant,  to  wit,  on  the  day  aforesaid,  there  requested  the  defendant 
to  marry  her,  the  defendant  did  not  nor  would  then,  or  at  any  time  before 
or  afterward,  marry  the  plaintiff,  but  refuses  so  to  do. 

The  above  count  is  for  not  marrying  on  request.  One  or 
all  of  the  following  counts  may  be  added,  according  to  the 
circumstances. 

No.  66,     Count  for  marrying  another  looman. 

For  that  whereas  on,  etc.,  in,  etc.,  in  consideration  that  the  plaintiff,  be- 
ing then  unmarried,  had  then  and  there  promised  the  defendant,  at  his 
request,  to  marry  him,  when  she,  the  plaintiff,  should  be  thereunto  re- 
quested, the  defendant  promised  the  plaintiff  to  marry  her  on  request: 
And  the  plaintiff  avers  that  she,  confiding  in  the  said  promise  of  the  de- 
fendant, has  always  from  thence  hitherto  remained  and  still  is  unmarried. 

Yet  the  defendant,  after  the  making  of  his  said  promise,  to  wit,  on , 

there  wrongfully  married  a  certain  other  person,  to  wit,  one ,  contrary 

to  It  is  last-mentioned  promise. 

No.  67.     Count  on  promise  to  marry  in  a  reasonable  time. 

And  whereas  also  on,  etc.,  in,  etc.,  in  consideration  that  the  plaintiff, 
being  then  unmarried,  had  then  and  there  promised  the  defendant,  at  his 
request,  to  marry  him,  the  defendant  promised  the  plaintiff  to  marry  her 
within  a  reasonable  time  thereafter:  And  the  plaintiff  avers  that,  confidino- 
in  the  last-mentioned  promise  of  the  defendant,  she  has  always  hitherto  re- 
mained and  still  is  unmarried,  and  there  has  been,  during  all  the  time  last 
aforesaid,  and  still  is,  ready  and  willing  to  marry  the  defendant,  whereof  he 
has  always  there  had  notice.  Yet  although  a  reasonable  time  for  the  defend- 
ant to  marry  the  plaintiff  has  elapsed  since  the  making  of  the  last-men- 
tioned promise  of  the  defendant,  and  although  the  plaintiff,  after  tlie  lapse 
of  such  reasonable  time,  to  tvit,  on,  etc.,  there  requested  the  defendant  to 
marry  her,  he  did  not  nor  would,  within  such  reasonable  time  as  aforesaid, 
or  when  so  requested  as  aforesaid,  or  at  any  other  time,  marry  the  plaintiff, 
but  refuses  so  to  do.  {It  may  be  advisable  to  insert  a  count  like  this,  leav- 
ing out  the  words  in  italics.) 


124  ASSUMPSIT. 

No.  68,  Count  on  promise  to  marry  at  a  particular  time. 
For  that  whereas  on,  etc.,  in  etc.,  in  consideration  that  the  plaintiff,  being 
then  unmarried,  had  then  and  there  promised  the  defendant,  at  his  request, 
to  marry  him  in  the  {latter  part  of  February  next — state  the  time  according 
to  facts — )  he,  the  defendant,  promised  the  plaintiff  to  marry  her  in  (the 
latter  part  of  February  then  next).  And  the  plaintiff  avers  that  she,  con- 
fiding in  the  said  promise,  in  {the  latter  part  of  February  next)  after  the 
making  thereof,  and  before  and  ever  since,  was  and  has  been  ready  and 
willing  to  marry  the  defendant,  whereof  he  then  and  there  had  notice.  Yet 
the  defendant  did  not  nor  would  in  {the  said  latter  part  of  February  next) 
after  the  making  of  his  said  promise,  or  at  any  time  before  or  afterward, 
marry  the  plaintiff;  and  afterward,  to  wit,  on,  etc.,  he  there  wholly  de- 
clined and  refused  to  marry  the  plaintiff,  and  wholly  discharged  her  from 
the  performing  of  her  said  promise. 

Where  the  promise  is  special,  as  "  after  the  death  of  the  de- 
fondant's  father,"  it  should  be  so  declared  on,  with  proper 
averments.'  The  action  on  a  promise  to  marry  is  sustainable 
only  when  the  contract  is  mutual."  An  infant  is  not  liable  on 
his  executory  contract  to  marry.*  And  though  one  of  the  par- 
ties is  an  infant,  yet  the  contract  is  binding  on  the  other  side,  * 
and  can  be  sustained  by  a  man  against  a  woman; '  but  an 
executor  can  not  sue."  It  is  not  necessary  that  the  time  of 
marriage  should  be  specified  to  make  the  promise  binding.' 
If  no  definite  time  is  fixed  in  law  the  contract  is  one  to  be 
performed  in  a  reasonable  time.* 

If  the  promise  was  to  marry  on  a  particular  day,  it  should 
be  so  described  in  one  count  of  the  declaration;  *  but  for  fear 
the  plaintiff  should  not  be  able  to  prove  such  particular 
promise,  it  is  usual  and  better  to  add  a  count  to  marry  on 

1  Peake,  103;  Chitty  on  Contracts,  Cowen  22;  Hamilton  v,  Lomax,  26 

426.  Barb.  616;  McConkey  v.  Burnes,  42 

^King  v.  Kersey,  2  Ind.  402;  3Ior-  111.  App.  511. 

gan  v.  Yarborough,  5   La.  An.  321;  *2  Stra.  937;   Bac.  Abr.,  Infant; 

Kelly  V.  Riley,  106  Mass.  339;  Allard  Willard  v.  Stone,  7  Cow,  22. 

x.Smith,2Uetc.  (K\.),2m;  Wills  \.  ^Carth.  467;   1    Salk.  24;   5  Mod. 

Padgett,   8    Barb.   324;   Roman    v.  511:  J^eZZ?/ v.  jRra/ro,  9  Ala.  328. 

Earle,   53    N.  Y.    267;    Conrad    v.  ^2  K.&S.  iQS\  Smith  v.  Sherman, 

Williams,  6  Hill  444;  Ellis  v.  Chig-  4    Cush.    408;    Kelly    v.   Riley,   106 

genheimer,  20  Pa.  St.  287;  Espy  v.  Mass.  330;  Wade  v.  KaWfleisch,  50 

Jones,  37  Ala.  379.  N.  Y.  282. 

3 1  Parsons  on  Cont.  544:  Holt  v.  '^  Carth.  467. 

Ward,  2  Strange  937;  Hunt  Y.Peak,  ^Judy  v.  Sterrett,  52  111.  App.  265. 

5  Cowen  475;  Willard  v.  Stone,  7  » 2  Chit.  PI.  321,  note  m. 


ASSUMPSIT.  125 

request,  another  to  marry  in  a  reasonable  time,  and  another  to 
marry"  generally/ 

Under  a  count  to  marry  on  request,  positive  proof  of  such 
request  and  refusal  is  never  required.  This  may  be  inferred 
from  circumstances,  and  especially  from  testimony  showing  a 
substantial  refusal  by  the  defendant.  The  request  need  not 
necessarily  be  made  by  the  plaintiff  herself.  It  may  be  made 
by  her  father,  or  other  friend,  whose  authority  to  do  so  may 
be  inferred  from  the  relations  existing  between  the  parties.^ 

In  an  action  for  a  breach  of  marriage  contract,  seduction  of 
the  plaintiff  by  the  defendant,  under  promise  of  marriage,  may 
be  given  in  evidence  in  aggravation  of  damages.^  The  reason 
for  this  rule  of  law  is  manifest.  A  party  is  always  entitled  to 
such  damages  as  are  the  natural  and  proximate  results  of  the 
act  complained  of.*  Whatever  damages  the  plaintiff  may 
have  suffered  in  consequence  of  the  defendant's  refusal  to 
marry  her,  she  is  legitimately  entitled  to  recover  in  this  action. 
And  these  damages  are  to  be  estimated  from  the  circumstances 
of  the  parties,  and  the  situation  in  which  the  plaintiff  is  left 
by  the  defendant's  refusal  to  perform  his  contract.^ 

The  rules  applicable  to  contracts  of  marriage  do  not  differ 
materially  from  those  governing  contracts  in  general.  In 
both,  the  intention  of  the  parties  must  be  collected  from  the 
terms  employed,  whether  the  contract  is  verbal  or  in  writing, 
and  their  rights  and  liabilities  determined  accordingly.  In 
the  case  of  mutual  and  dependent  promises,  neither  can  main- 
tain an  action  without  first  showing  a  willingness  and  an  offer 
to  perform  on  his  part,  or  that  the  other  party  has  done  some 
act  dispensing  with  such  offer.*  If  the  declaration  is  upon  a 
promise  to  marry  upon  request,  or  in  a  reasonable  time,  the 
plaintiff  must  aver  and  prove  a  special  request,  or  an  offer  to 
perform;  a  bare  allegation  of  readiness  and  willingness  is  not 

1 1  M.  &  P,  239;  2  Chit.  PI.  323.  *  2  Greenl.  Ev.   256;  Tubbs  v.  Van 

^Prescott  V.  Guyler,  32  111.  312.  Kleck,  12  111.  446. 

3  Tubbs  V.  Van  Kleck,  12  111.  446;  *  Tubbs  v.  Van  Kleck,  12  III.  446. 

Burnett    v.  Simpkins,   24  111.    264;  «  Greenup  v.  Stoker,  3  Gilm.  202; 

Paulv.  Frazier,  3  Mass.  72;  King  v.  Porter  v.  Rose,  12  Johns.  209;  Burks 

Hersey,  2  Ind.  402;  Green  x.  Spencer,  v.  Shain,  2   Bibb.  341;  1   Chitty  PI. 

3    Mo.   318;  Wlialen  v.  Layman,  2  303. 
Blackf.  194. 


126  ASSUMPSIT. 

sufficient/  "Where  there  is  a  general  promise  to  marry,  the 
law  will  imply  that  it  is  to  be  performed  within  a  reasonable 
time.'  If  a  man  tells  a  woman's  father  that  he  does  not  intend 
to  perform  his  matrimonial  engagement  to  his  daughter,  it  is 
sufficient  for  her  to  maintain  her  action.^  The  promise  to 
marry,  the  acceptance,  or  the  request  or  refusal,  may  be  proved 
by  circumstances.* 

In  an  action  for  a  breach  of  promise  of  marriage,  the  de- 
fendant may  prove  particular  acts  of  the  plaintiff  tending  to 
shoAV  that  she  was  an  unchaste  woman,  if  such  acts  and  her 
character  were  unknown  to  him  until  after  the  making  of  the 
promise,  but  not  otherwise,^  except  in  mitigation  of  damages;  ® 
and  to  absolve  the  defendant,  he  must  have  terminated  the 
engagement  immediately  upon  being  apprised  of  the  facts.' 
A  promise  of  marriage  made  in  consideration  of  sexual  inter- 
course is  void.* 

It  would  seem  that  very  slight  facts  and  circumstances  tend- 
ing to  prove  misconduct,  may  be  shown  in  mitigation  of  dam- 
ages; '  but  while  this  is  true,  and  the  defendant  is  entitled  to 
offer,  in  mitigation^  general  rumor  of  bad  character,'"  yet  he 
shall  not  har  the  action  without  proof  substantiating  the 
charges;  nor  shall  he  be  allowed  to  prove  either  general  repu- 
tation or  particular  actSj  if  such  reputation  or  acts  were  the 
result  of  his  own  fault." 

Contracts  of  marriage  may  be  inferred  from  unusual  and 
marked  attentions  and  continued  intimacy,  and  those  mani- 
festations of  attachment  and  regard  which  usually  precede  the 
consummation  of  such  contracts.'^ 

1  Greemip  v.  Stoker,  3  Gilm.  202.  ^  Butler  v.  Eschleman,  18  111.  44. 

^  Blackbiirn  v.  3Iann,  85  111.  222;  ^Burnett  v.  Simpkins,  24  111.  264; 

Atchison  v.  Baker,  Peake  Ad.   Cas.  Kantzler  v.  Grant,    2  Bradw.  236; 

103;    Coil  V.  Wallace,   24  N.  J.  L.  Doubet  v.  Kirkman,  15  III.  App.  622. 

291;  Wagensellerv.  Simmers,  97  Pa.  ''Burnett  v.  Simpkins,  24  111.  264. 

St.  465.  «  Judy  v.  Sterrett,  153  111.  94. 

2  Gough  V.  Farr,  2  Car.  &  Payne,  « Foulkes  v.  Selway,  3  Esp.  236; 
631.  Willard  v.  Stone,  7  Cow.  22;   Whar- 

*  Greenup  v.  Stoker,  3  Gilm.  202;  ion  v.  Leivis,  1  Car.  &  Payne  529. 

Prescott  V.  Guyler,  32  111.  312;  Rock-  '"  Baddeley  v.  Martlock,  1  Holt.  N. 

afelloio   V.    Neivcomb,    57    111.   186;  F.  1;  Foidkes  v.  Selivay,  S  Esp.  236; 

Blackburn  V.  Mann,  85111.  222;  Judy  '•  Boynton  v.  Kellogg,  3  Mass.  189. 

V.  Sterrett,  52  111.  App.  265.  12  Qreenup  v.  Stoker,  3  Gilm.  202. 


ASSUMPSIT.  127 

AGAINST    BAILEES. 

No.  69.    Against  hirer  of  horse,  for  using  it  improperly,  and  on  a  differ- 
ent journey,  etc. 

{Commence  as  in  No.  36,  ante,  page  91.)  For  that  whereas  on,  etc.,  in 
the  county  aforesaid,  in  consideration  that  the  plaintiff  would  let  to  hire 
and  deliver  to  the  defendant ,  at  his  request,  a  certain  horse  of  the  plaintiff, 

of  the  value  of dollars,  for  the  defendant  to  go  and  perform  a  certain 

journey  therewith,  to  wit,  from,  etc.,  to  etc.,  and  from  thence  back  again 
to,  etc.,  aforesaid,  for  certain  reasonable  reward  to  the  plaintiff  in  that  be- 
half, the  defendant  promised  the  plaintiff  that  he,  the  defendant,  would 
not  go  or  perform  with  the  said  horse  any  other  journey  than  the  one  afore- 
said, and  that  he  would  ride  {or  "  drive")  and  use  the  said  horse  in  a  mod- 
erate, careful,  and  proper  manner:  And  the  plaintiff  avers  that  there- 
upon he,  confiding  in  the  said  promise,  then  and  there  let  to  hire  and 
delivered  the  said  horse  to  the  defendant,  and  the  defendant  then  and  there 
hired  and  received  the  same  of  the  plaintiff,  for  the  purpose,  and  upon  the 
terms  aforesaid.  Yet  the  defendant,  not  regarding  his  said  promise,  there- 
upon, on  the  day  aforesaid, went  and  performed  with  the  said  horse  another 
journey  than  the  one  aforesaid,  that  is  to  say,  a  certain  journey  from,  etc., 

aforesaid  to,  etc.,  aforesaid,  and  from  thence  to  a  certain  place  called , 

in  the  county  of ,  and  from  thence  back  again  to,  etc.,  aforesaid;  and 

in  going  and  performing  the  last  mentioned  journey,  the  defendant  so  im- 
moderately, carelessly,  and  improperly  rode  (or  "  drove")  and  used  the 
said  horse,  that  by  means  of  the  several  premises  the  said  horse  became  and 
was  greatly  lamed  and  hurt,  and  so  remained  for  a  long  time,  to  wit, 
hitherto,  during  all  which  time  the  plaintiff  was  deprived  of  the  use  and 
benefit  of  his  said  horse,  and  also  thereby  the  said  horse  became  and  was 
greatly  damaged  and  lessened  in  value. 

(The  second  count  is  usually  for  riding  the  horse  immoderately,  and  is 
as  follows:) 

And  whereas  also  on,  etc.,  in  etc.,  in  consideration  that  the  plaintiff,  at 
the  request  of  the  defendant,  had  let  to  hire  and  delivered  to  the  defendant 

a  certain  other  horse  of  the  plaintiff,  of  the  value  of dollars,  to  be  by 

the  defendant  ridden  and  used,  he,  the  defendant,  promised  the  plaintiff  to 
ride  and  use  the  last  mentioned  horse  in  a  moderate,  careful  and  proper 
manner.  And  although  the  defendant  then  and  there  received  the  last 
mentioned  horse  of  the  plaintiff,  for  the  purpose  last  aforesaid,  yet  the  defend- 
ant, not  regarding  his  last  mentioned  promise,  did  not  nor  would  ride  or 
use  the  last  mentioned  horse  in  a  moderate,  careful  or  proper  manner;  but 
on  the  contrary  thereof,  the  defendant,  after  the  making  of  his  last  men- 
tioned promise,  to  wit,  on  the  day  aforesaid,  there  so  carelessly  and  im- 
properly rode  and  used  the  last  mentioned  horse  that  by  means  thereof  the 
same  became  and  was  greatly  lamed  and  hurt,  and  so  remained  for  a  long 
space  of  time,  to  wit,  hitherto,  during  all  which  time  the  plaintiff  thereby 
was  deprived  of  the  use  and  benefit  of  his  last  mentioned  horse,  and  also 
thereby  the  same  horse  became  and  was  greatly  damaged  and  lessened  in 
value. 


128  ASSUMPSIT. 

{If  there  is  any  doubt  whether  the  injury  was  oceasionedhy  improper  rid- 
ing or  driving,  it  is  advisable  to  add  a  count  like  the  last,  but  stating  tlie 
defendant's  promise  to  have  been  "  that  whilst  he  should  so  have  the  use  of 
the  last  mentioned  horse,  as  aforesaid,  he  would  take  due  and  proper  care 
thereof,"  a?id  auerringr  "that  the  defendant  had  the  use,  etc.,  and  that 
whilst  he  so  had  the  use,  etc,  he  did  not  take  due  and  proper  care  thereof, 
but  wholly  neglected  so  to  do;  and  by  reason  thereof  the  last-mentioned 
horse,  on,  etc.,  there  became  and  was  greatly  damaged,"  etc.  It  may  also 
be  advisable  to  add  anotlier  count,  stating,  "  that  whereas  on.  etc.,  in,  etc., 
in  consideration  that  the  plaintiff  had  delivered  to  the  defendant,  at  his  re- 
quest, a  certain  other  horse,  to  be  had  and  used  by  the  defendant" — omit- 
ting the  statement  as  to  hire — "  the  defendant  promised,"  etc.,  stating  the 
promise  as  in  the  count  last  suggested.  If  there  is  any  demand  for  horse- 
hire,  add  a  count  therefor,  as  ante,  under  No.  25,  and  the  account  stated.^ 
Conclude  as  follows:) 

Wherefore  the  plaintiff  says  that  he  is  injured  and  has  sustained  dam  • 
age  to  the  amount  of dollars,  and  therefore  he  brings  his  suit,  etc. 

A  hirer  is  not  bound  to  exercise  more  than  ordinary  care 
with  the  thing  let  to  hire,"  but  a  borrower  is  bound  to  use  ex- 
traordinary care.'  The  use  of  domestic  animals  necessarily  in- 
volves their  keeping,  and  the  expense  incurred  by  the  borrower 
for  such  keeping  is  not  a  compensation  to  the  lender  which 
makes  the  bailment  one  of  hiring.* 

The  hirer  of  a  horse  is  not  liable  to  make  compensation  for 
his  death,  occasioned  by  error  of  a  farrier  called  in,  but  is  lia- 
ble if  he,  the  hirer,  imprudently  gave  medicine  himself;  nor  is 
the  hirer  liable  for  a  horse's  falling,  etc.,  without  the  hirer's 
fault."  He  must  not  ride  a  horse  after  it  is  exhausted  and  re- 
fuses its  feed.' 

The  burden  is  on  the  bailee  of  an  animal  received  in  good 
and  returned  in  bad  condition,  to  shoAv  how  the  change  hap- 
pened.' An  agister  of  cattle  for  hire  is  liable  for  the  negligence 
of  his  servants,  but  not  for  their  willful  or  malicious  acts,  com- 
mitted without  his  knowledge.' 

12  Chit.  PI.  337,  339.  *Hotvard  v.  Babcock,  21  111.  259; 

«Ld.   Raym  916;  Bui.  N.  P.   72;  Bennett  v.  O'Brien,  31  III.  250. 

Jones,  89;    Metcalf  v.   Hess,  Will.  "8  Camp.  5. 

129;  Hnlty  v.  Markel,  44  111.  225.  «Gow,  C.  N.  P.  1. 

^Phillips  V.    Conden,   14  111.   84;  '' Burlingame  v.  Home,  ZOIW.  A'^p. 

Howard  v.  Babcock,  21  III.  259;  Ben-  332. 

nett  V.  aBrien,  21  111.  250.  ^Halty  v.  Markel,  44  111.  225. 


ASSUMPSIT.  129 

No.  70,     Against  carrier  by  land,  for  loss  of  goods. 

(Commence  as  in  No.  36,  ante,  page  01.)  For  that  whereas  the  defendant, 
before  and  at  the  time  of  the  making  of  his  promise  hereinafter  next  men- 
tioned, was  a  common  carrier  of  goods  and  chattels  for  hire,  in  and  by  a 

certain  wagon,  from to ;  and  the  defendant  being  such  carrier  as 

aforesaid,  the  plaintiff,  on,  etc.,  at,  etc.,  at  the  request  of  the  defendant, 
caused  to  be  delivered  to  him  certain  goods  and  chattels  of  the  plaintiff,  to 

wit,  etc.,  {describe   them,  as  in  trover,)  of    the  value  of dollars,  to  be 

taken  care  of  and  safely  carried  by  the  defendant,  as  such  cari-rier  as  afore- 
said, in  and  by  the  said  wagon,  from,  etc.,  aforesaid,  to,  etc.,  aforesaid,  and 
at  the  last  named  place  to  be  safely  delivered  hj  the  defendant  for  the 
plaintiff:  and  in  consideration  thereof,  and  of  certain  reward  to  the  defend- 
ant in  that  behalf,  he,  the  defendant,  on  the  day  aforesaid,  in  the  county 
aforesaid,  promised  the  plaintiff  to  take  care  of  the  said  goods  and  chattels, 
and  safely  to  carry  the  same,  in  and  by  the  said  wagon,  from,  etc.,  afore- 
said to,  etc.,  aforesaid,  and  at  the  last  named  place  safely  to  deliver  the 
same  for  the  plaintiff.  And  although  the  defendant,  as  such  carrier  as 
aforesaid,  then  received  the  said  goods  and  chattels,  at  the  place  first  afore- 
said, for  the  purpose  aforesaid,  yet  not  regarding  his  said  promise,  he  has 
not  taken  care  of  the  said  goods  and  chattels,  or  safely  carried  the  same 
from,  etc.,  aforesaid,  to  etc.,  aforesaid,  nor  has  at  the  last  mentioned  place 
safely  delivered  the  same  for  the  plaintiff;  but  on  the  contrary  thereof,  the 
defendant  so  carelessly  behaved  himself  with  respect  to  the  said  goods  and 
chattels,  that  by  and  through  the  mere  negligence  and  improper  conduct 
of  the  defendant  and  his  servants  in  this  behalf,  (*)  the  said  goods  and 
chattels  aftei-ward,  to  wit,  on  the  day  aforesaid,  became  and  were  wholly, 
lost  to  the  plaintiff. 

(If  only  a  part  of  the  goods  icas  lost,  proceed  from  the  asterisk  in  this 
count  as  folloivs:  "  divers  of  the  said  goods  and  chattels,  to  wit,  etc.,  of 
the  value  of,  etc.,  were  on  the  day  aforesaid  wholly  lost  to  the  plaintiff  " — 
and,  if  according  to  the  fact — "  and  divers  others  thereof,  to  wit,  etc.,  of 
the  value  of,  etc.,  were  then  greatly  damaged,  and  lessened  in  value  to  the 
amount  of,  etc.,"  or  "  the  residue  thereof  was  then  greatly  damaged,  etc." 
Or  see  averment  of  partial  loss  in  the  following  form,  No.  71.) 

(Second  count,  for  not  carrying  icithin  a  reasonable  time.)  And  for  that 
whereas  also,  on  the  day  aforesaid,  at,  etc.,  aforesaid,  in  consideration  that 
the  plaintiff  had  then  and  there  caused  to  be  delivered  to  the  defendant,  at 
his  request,  divers  other  goods  and  chattels  of  the  plaintiff,  to  wit,  etc.,  of 
the  value  of dollars,  to  be  taken  care  of  and  safely  carried  by  the  de- 
fendant fi-om,  etc.,  aforesaid  to,  etc.,  aforesaid,  and  at  the  last  mentioned 
place  to  be  by  him  delivered  for  the  plaintiff,  for  certain  reward  to  the  de- 
fendant in  that  behalf,  he,  the  defendant,  promised  the  plaintiff  to  take 
care  of  the  last  mentioned  goods  and  chattels,  and  safely  to  carry  the  same 
fi'om,  etc.,  aforesaid  to,  etc.,  aforesaid,  and  at  the  last  mentioned  place  to 
deliver  the  same  for  the  plaintiff,  in  a  reasonable  time  then  next  foUowino-. 
And  although  the  defendant  then  received  the  last  mentioned  goods  and 
chattels,  at  the  place  first  aforesaid,  for  the  purpose  aforesaid,  and  although 
a  reasonable  time  for  the  cai-riage  and  delivery  tliereof  as  aforesaid  has 
9 


1 30  ASSUMPSIT. 

long  since  elapsed,  yet  the  defendant  did  not  nor  would  within  such  reason- 
able time,  or  afterward,  though  often  requested,  safely  carry  the  last  men- 
tioned goods  and  chattels  from,  etc.,  aforesaid  to,  etc.,  aforesaid,  or  at  the 
last  named  place  deliver  the  same  for  the  plaintiff,  but  has  hitherto  wholly 
neglected  so  to  do;  whereby  the  last  mentioned  goods  and  chattels  have 
been  and  are  wholly  lost  to  the  plaintiff. 

(Add  counts  for  money  had  and  received,  and  upon  an  account  stated, 
and  conclude  as  in  No.  61  or  No.  69.) 

No.  71.     Against  the  captain  of  a  ship,  on  his  bill  of  lading,  for  loss  of 

goods. 

{Commence  as  in  No.  36,  ante,  page  91.)  For  that  whereas  the  defendant, 
before  and  at  the  time  of  the  making  of  his  promise  hereinafter  next  men- 
tioned, was  the  master  of  a  certain  vessel  called  the ,  then  at,  etc.,  and 

bound  from  thence  to,  etc.;  and  the  plaintiff,  on,  etc.,  at,  etc.,  aforesaid,  at 
the  request  of  the  defendant,  caused  to  be  shipped  on  board  of  the  said  ves- 
eel  divers  goods  and  chattels,  to  wit,  etc.,  then  in  good  order  and  icell  con- 
ditioned, of  the  value  of dollars,  to  be  taken  care  of  and  safely  carried 

by  the  defendant,  on  board  of  the  said  vessel,  from,  etc.,  aforesaid,  to,  etc., 
aforesaid,  and  at  the  last  mentioned  place  to  be  safely  delivered,  in  the  like 
good  order  and  icell  conditioned,  for  the  plaintiff  (f/ie  dangers  of  navigation 
only  excepted);  and  in  consideration  thereof,  and  of  certain  reward  to  the 
defendant  in  that  behalf,  he,  the  defendant,  thereupon,  on  the  day  and  in 
the  county  aforesaid,  promised  the  plaintiff  to  take  care  of  and  safely  carry 
and  deliver  the  said  goods  and  chattels  as  aforesaid  {the  dangers  of  naviga- 
tion only  excepted):  And  although  the  defendant,  so  being  such  master  of 
the  said  vessel  as  aforesaid,  then  and  there  received  the  said  goods  and  chat- 
te's,  to  be  carried  and  delivered  as  aforesaid,  and  although  a  reasonable 
time  for  the  carrying  and  delivering  of  the  same  as  aforesaid  has  long  since 
elapsed,  and  the  defendant  has  delivered  for  the  plaintiff,  at,  etc.,  aforesaid, 
a  part  of  the  said  goods  and  chattels,  to  wit,  etc. ;  yet  the  defendant,  not 
regarding  his  said  promise,  did  not  nor  would  take  care  of  and  safely  carry 
the  residue  of  the  said  goods  and  chattels  from,  etc.,  aforesaid,  to,  etc., 
aforesaid,  and  at  the  last  mentioned  place  safely  deliver  the  same  for  the 
plaintiff  {although  no  dangers  of  navigation  did  j)revent  the  defendant  from  so 
doing);  but  on  the  contrary  thereof,  the  defendant,  so  being  such  master  of 
the  said  vessel  as  aforesaid,  so  carelessly  behaved  himself  with  respect  to  the 
said  residue  of  the  said  goods  and  chattels,  that  on  the  day  aforesaid,  by  and 
through  the  mere  negligence  and  improper  conduct  of  the  defendant  and 
his  servants  in  that  behalf,  the  said  residue  of  the  said  goods  and  chattels, 
being  of  the  value  of dollars,  became  and  was  wholly  lost  to  the  plaintiff. 

{The  words  in  italics,  in  the  above  count,  will  be  inserted,  or  omitted, 
or  varied,  according  to  the  terms  of  the  bill  of  lading.) 

{Second  coimt.)  And  for  that  whereas  also,  on  the  day  aforesaid,  at,  etc., 
aforesaid,  in  consideration  that  the  plaintiff  had  then  and  there  delivered  to 
the  defendant,  at  his  request,  divers  other  goods  and  chattels,  to  wit,  etc., 
of  the  value  of,  etc.,  to  be  taken  care  of  and  safely  carried  by  the  defendant 
on  board  of  a  certain  other  vessel,  from,  etc.,  aforesaid,  to,  etc.,  aforesaid,  and 


ASSUMPSIT.  131 

at  the  last  named  place  to  be  safely  delivered  for  the  plamtiff ,  for  certain  re- 
ward to  the  defendant  in  that  behalf,  he,  the  defendant,  promised  the  plaintiff 
to  take  due  care  of  the  last  mentioned  goods  and  chattels  whilst  he  should  have 
the  care  and  custody  thereof  for  the  purpose  aforesaid  :  And  although  the 
defendant,  on  the  day  aforesaid,  at,  etc.,  aforesaid,  received  the  last  men- 
tioned goods  and  chattels,  for  the  purpose  aforesaid,  yet,  not  regarding  his 
last  mentioned  promise,  he  took  so  little  and  such  bad  care  of  those  goods 
and  chattels,  whilst  he  had  the  care  and  custody  thereof  for  the  purpose 
aforesaid,  that  on  the  day  aforesaid,  by  and  through  the  mere  negligence  of 
the  defendant  in  that  behalf,  the  same  became  and  were  wholly  lost  to  the 
plaintiff. 

{Conclude  as  in  No.  69,  ante.) 

It  does  not  appear  to  be  necessary,  in  assumpsit,  to  com- 
mence with  an  inducement  of  the  defendant's  being  a  common 
carrier,  or  of  the  nature  of  the  conveyance,  but  the  declaration 
will  suffice  if  it  merely  states  the  deliver}'-  to  the  defendant  of 
the  goods,  etc.,  to  be  carried  from,  etc.,  to,  etc.,  and  his  under- 
taking to  carry  them  accordingly.' 

The  places  to  and  from  which  the  goods  were  to  be  carried 
must  be  stated  accurately."  An  exact  description  of  the  goods 
is  not  material;^  nor  is  it  necessary  to  state  the  amount  of  the 
reward  paid,  or  to  be  paid,  for  the  carriage  of  the  goods.*  In 
general,  the  consignee  of  the  goods  should  be  the  plaintiff  ;  * 
but  if  the  consignee  had  no  propert}-^  in  the  goods  at  the  time 
of  the  delivery  thereof  to  the  carrier,  the  consignor  must  sue.' 

In  an  action  on  the  case,  however,  the  consignor,  thouo-h 
only  a  bailee,  may  sue,  and  so  may  the  real  owner,  and  so  may 
the  consignee,  but  the  first  recovery  of  damages  is  a  bar  to  any 
other.^  And  the  consignor  may  control  the  destination  of 
property  in  transitu,  and  the  carrier  is  bound  to  obey  his  di- 
rections in  that  regard." 

'IWils.  281;    Bac.  Abr.,  tit.  Car-  Raymond    v.   Rowland,    12  Wend. 

rier,  A.  176;  Everett  \.  Saltus,  15  Wend.  474. 

^  Tucker  V.  Clarklin,  2  Stark  385.  '' R.  R.  Co.  v.    McComas,   33    111. 

3  2  Saund.  74  a.  185;  M.  D.  T.  Co.  v.  Smith,  76  111. 

*  Andrews  \.  Whitehead,  13  East.  543;  R.  R.    Co.    v.  Emrich,  24    111. 

114,  note  a;  2  New  Rep.  458;  Dal-  App.  245;  R.  R.  Co.  v.  Miller,  32111. 

stonv.  Janson,  3  Ld.  Raym.  115.  App.  259. 

^  Dawes  v.  Peck,  8  T.  R.  330.  » Lewis  v.  R.  R.    Co.,  40  111.   281; 

^Sargent  v.  Morris,  3  B.  &  A.  277;  Strahorn  v.  Trans.  Co.,  43  111.  424. 
Potter  V.    Lansing,  1    Johns.    223; 


132  ASSUMPSIT. 

The  carrier  lias  two  distinct  liabilities  :  Fu-d,  for  losses  by 
accident  and  mistake,  where  he  is  liable  as  insurer.  Second, 
for  losses  by  default  or  negligence,  Avhere  he  is  answerable  as 
an  ordinary  bailee.'  It  is  provided  by  the  statute  of  Illinois, 
that  "  whenever  any  property  is  received  by  any  railroad  cor- 
poration to  be  transported  from  one  place  to  another,  within  or 
without  this  state,  it  shall  not  be  lawful  for  such  corporation 
to  limit  its  common  law  liability  safely  to  deliver  such  property 
at  the  place  to  which  the  same  is  to  be  transported,  by  any 
stipulation  or  limitation  expressed  in  the  receipt  given  for  the 
safe  delivery  of  such  property."  ^ 

The  statute  does  not  prohibit  common  carriers  from  limit - 
ino-  their  common  law  liability  by  contract  with  the  owner  of 
the  property  delivered  for  transportation.  It  only  prohibits 
the  limitation  of  the  carrier's  liability  by  a  stipulation  or  clause 
expressed  in  the  receipt  given  for  the  property. 

A  railway  carrier,  in  many  respects  may,  by  express  con- 
tract, limit  its  strict  common  law  liability.  It  may,  by  special 
contract,  limit  its  liability  to  such  damage  or  loss  as  may  occur 
on  its  own  line  of  carriage;  and  against  loss  by  fire  without  its 
fault;  and  its  liability  may  thus  be  limited  as  an  insurer,  and 
ao-ainst  other  loss  not  attributable  to  its  negligence  or  that  of 
its  servants;  and  it  may  require  the  value  of  goods  offered  for 
transportation  to  be  fixed  by  the  shipper,  to  protect  itself 
against  fraud  in  case  of  loss. 

But  in  this  state  a  common  carrier  can  not,  even  by  express 
contract,  exempt  itself  from  liability  resulting  from  gross  neg- 
ligence or  willful  misconduct  committed  by  itself,  or  its  serv- 
ants or  employes;  nor  can  it  limit  its  liabilit}^  in  amount,  as 
against  damages  resulting  from  such  negligence.*    The  mere 

1  Boscotvitz  V.  Am.  Ex.  Co.,  93  111.  239;  R.  R.    Co.  v.    Hale,  2  Bradw. 

523,  150;  R.  R.  Co.  v.  Harmon,  12  Bradw. 

«  2  Starr  &  Curtis  1945;  Rev.  Stat.  54;  R.  R.   Co.  v.   3IorHson,  19  III. 

(1893),  1121;  Rev.  Stat.  (1895),  1205.  136;  R.  R.  Co.  v.    Read,  37  111.  485; 

3  R.  R.  Co.  v.  Chapman,  133  111.  R.  R.   Co.  v.  Adams,  42  111.  474;  R. 

96;  Coles  V.  R.  R.  Co.,  41  111.  App.  R.  Co.  v.   Owens,  53  111.  391;  R.  R. 

607;  R.  R.  Co.  v.   Jaggerman,   115  Co.\.  Hall,  58  111.  409;  R.  R.  Co.  v. 

111.407;  R.R.  Co.  v.  Brown,  51  111.  Montfort,  60  111.    175;  Arnolds.  R. 

App.  656;  Ex.  Co.  v.  Stettaners,  61  R.  Co.,  83111.  273;  R.  R.  Co.\. 

111.  184;  R.  R.  Co.  v.  Wilcox,  84  lU.  85  lU.  80. 


ASSUMPSIT.  133 

acceptance  of  a  bill  of  lading  or  receipt,  which  contains  condi- 
tions restricting  the  carrier's  liability,  raises  no  presumption 
of  assent  to  its  terms.' 

The  adjudications  on  the  subject  of  common  carriers  are  too 
numerous  to  permit  even  a  summary  of  them  in  a  work  of  this 
kind.  The  principal  cases  in  the  supreme  and  appellate 
courts  of  Illinois  relating  to  the  duties  and  rights  of  carriers 
of  goods,^  money,'  baggage,*  and  passengers,'  and  not  herein- 
before cited,   are  noted  below. 


'  Lawrence  on  Carriers,  Sec.  104, 
p.  411;  R.  R.  Co.  V.  Herndon,  81  111. 
143;  Ex.  Co.  v.  Haynes,  42  111.  89; 
Express\.  StettanersM  111.  184;  i?.  R. 
Co.  V.  Wilcox,  84  111.  239;  Trails.  Co- 
\.  Thielbar,  86  111.  71;  Trans.  Co.  v. 
Leyson,  89  111.  43;  Trustees  v.  Mesen- 
heimer,  89  111.  151;  Ex.  Co.  v.  Spel- 
man,  90  111.  455;  Trans.  Co.  v.  Dater, 
91  111.  195;  W.  T.  Co.  v.  Hosking,  19 
Bradw.  607;  M.  D.  T.  Co.  v.  Furih- 
mann,  149  111.  66:  R.  R.  Co.  v.  Jag- 
german,  115  111.  407. 

2  Trans.  Co.  v.  Joesting,  89111. 152; 
R.  R.  Co.  V.  Eriekson,  91  111.  613; 
Tr.  Co.v.  Moore.  88  III.  136;  R.  R.  Co. 
V.  Johnson,  34111.  389;  R.  R.  Co.  v. 
Smyser,  38  111.  355;  Am.  Ex.  Co.  v. 
Lesem,39  111.  312;  R.  R.  Co.  v. 
Montgomery,  39  111.  335;  R.  R.  Co. 
V.  Ames,  40  111.  249;  I.  C.  R.  R. 
V.  Waters,  41  111.  73;  Baker  v.  R. 
R.  Co.,  42  111.  73;  R.  R.  Co.  v. 
Scott,  42  111.  132;  R.  R.  Co.  v.  Cobb, 
48  111.  402;  Marshall  v.  Railroad,  48 
111.  425;  Vincent  v.  R.  R.  Co.,  49  111. 
33;  Railroad  v.  Memll,  52  111.  123; 
N.  T.  Co.  V.  Sellick,  52  111.  249; 
R.  R.  Co.  V.  McClellan,  54  III.  58; 
jR.  R.  Co.  V.  Frankenberger,  54  III. 
88;  Ry.  Co.  v.  Gilvin,  81  111.  511; 
Express  Co.  v.  Greenhalgh,  80  III. 
68;  Coles  v.  R.  R.  Co.,  41  111.  App. 
609;  R.  R.  Co.  v.  Peojjle,  19111.  App. 
141;  R.  R.  Co.  V.  Davis,  54  111.  App. 
130;  Express  Co.  y.WtUstein,2SIU. 


App.  101;  Shearer  V.  Ex.  Co.,  43111. 
App.  641. 

^  Baldwin  v.  Am.  Express  Co.,  23 
111.  197;  I.  C.  R.  R.  Co.  v.  Copeland, 
24  111.  332;  Express  Co.  v,  Baldwin, 
26  111.  504;  Express  Co.  v.  Haggard, 

37  111.  465;  Ghidliverv.  Express  Co., 

38  111.  503;  Ten  Eyck  v.  Harris,  47 
111.  268. 

•»  IVoodv.  Devin,  13  111.  746;  Par- 
meleev.  McNulty,  19  111.  556;  Partne- 
lee  V.  Smith,  21  111.  620;  Railroad  v. 
3Ieyers,  21  111.  627;  Pannelee  v. 
Fischer,  22111. 212;  Davis  v.  Rail  road, 
22  III.  278;  I.  C.  R.  R.  v.  Copeland, 
24  111.  332;  R.  R.  Co.  v.  Fahey,  52 
111.  81;  Bartholomew  v,  R.  R.  Co.,  53 
lU.  227;  R.  R.  Co.  v.  Collins,  56  lU. 
212;  R.  R.  Co.  v.  Oehm,  56  111.  293; 
R.  R.  Co.  V.  Carrow,  73  111.  348;  R. 
R.Co.  V.  Boyce.  73  111.  510;  Parmelee 
V.  Lowitz,  74  111.  116;  R.  R.  Co.  v. 
Clayton,  78 III.  616;  Ry.  Co.  v.  Hard- 
way,  17  111.  App.  323;  R.  R.  Co.  v. 
Addizoat,  17  111.  App.  635;  Rice  v. 
-R.  iJ.  Co.,  22  111.  App.  643;  Parme- 
lee V.  Raymond,  43  111.  App.  609; 
Packet  Co.  v.  Oatiman,  127  111.  610. 

» J'n'nfc  V.  Potter,  17  111.  406;  ii.  i2. 
Co.  V.  Yarwood,  17  111.  509;  Frink 
V.  Schroyer,  18  III.  416;  C,  B.  <fc  §. 
V.  Georflre,  19  111.  510;  R.  R.  Co.  v, 
Muhling,  30  111.  9;  R.  R.  Co.  v.  Ap- 
person,  49  111.  480;  Packet  Co.  v. 
IfPT??-?/,  50  111.  264:  I.  C.  R.  R.  Co.  v. 
Cox,  21  111.  20;  Moss  v.  Johnson,  23 


134  ASSUMPSIT. 

ON  CONTRACTS  OF  SALE  OF   GOODS. 

No.  72.    For  not  accepting  goods  sold. 

(Commence  as  in  No.  36,  ante,  page  91.)  For  that  whereas  on,  etc.,  in, 
etc.,  the  defendant  bargained  for  and  bought  of  the  plaintiff ,  and  the  plaint- 
iff then  and  there  sold  to  the  defendant,  at  his  request,  a  large  quantity,  to 

wit, bushels  of  wheat,  at  the  price  of for  each  bushel 

thereof,  to  be  delivered  by  the  plaintiff  to  the  defendant  in  a  week  then 

next  following,  at ,  and  to  be  paid  for  by  the  defendant  to  the  plaintiff 

on  the  delivery  thereof  as  aforesaid;  and  in  consideration  thereof,  and  that 
tlie  plaintiff  had  promised  the  defendant,  at  his  request,  to  deliver  the  said 
wheat  to  him  in  the  time  and  at  the  place  aforesaid,  the  defendant  there- 
upon, on  the  day  first  aforesaid,  in  the  county  aforesaid,  promised  the 
plaintiff  to  accept  the  said  wheat  from  him,  and  to  pay  him  for  the  same 
on  the  delivery  thereof  as  aforesaid:  And  although  the  plaintiff,  within  a 
week  next  after  the  making  of  the  said  promise  of  the  defendant,  to  wit, 
on,  etc.,  at,  etc.,  aforesaid,  was  ready  and  willing,  and  tendered  and 
offered  to  deliver  the  said  wheat  to  the  defendant,  and  tlien  and  there  re- 
quested him  to  accept  the  same,  and  to  pay  therefor  as  aforesaid,  yet  the 
defendant  did  not  nor  would  then,  or  at  any  time  before  or  afterward, 
accept  the  said  wheat,  or  any  part  thereof,  from  the  plaintiff,  or  pay  him 
for  the  same  as  aforesaid,  but  refused  so  to  do. 

{If  the  plaintiff  was  not  to  deliver  the  goods  at  any  particular  time 
and  place,  then  state  the  contract  accordingly;  and  if  the  goods  have  been 
resold  at  a  loss,  or  any  expense  has  been  incurred,  state  the  special  damage. 
Add  a  count  for  goods  bargained  and  sold,  under  ivhich  count  the  plaintiff 
may  in  general  recover.) 

The  damages,  in  an  action  for  not  accepting  goods  at  an 
agreed  time,  place  and  price,  will  be  the  difference  between 
that  price  and  the  market  value  of  the  goods  at  the  time  and 
place  so  llxed.*     The  vendor  may  resell  the  goods  and  charge 

111.  633;  Tuller  v.  Talbot,  23  111.  257;  Engel,  35  111.  App.  491;  Id.  v.  Cook, 
R.  R.  Co.  V.  Hazzard,  26  111.  373;  145  111.  553;  Id.  v.  Barrett,  16  111. 
R.  R.  Co.  V.  Pondrom,  51  111.  333;  App.  23;  Id.  v.  Pillsbury,  123  111.  21; 
Quinn  v.  R.  R.  Co.,  51  111.  495;  R.  R.  Id.  v.  Broivn,  123  111.  173;  Id.  v.  El- 
Co.  V.  Baddeley,  54111.  20;  R.  R.  Co.  der,  50  111.  App.  273;  Id.  v.  Coit,  50 
V.  Phillips,  fi5  III.  IM;  Id.  v.Michie,  111.  App.  640;  Id.  v.  Lewis,  48  111. 
83111.  427;  Id.  v.  Dunn,  61  111.  385;  App.  274;  Id.  v.  Williams,  140  111. 
Id.  V.  Thompson,  56  111.  138;  Id.  v.  275;  Id.  v.  Cotton,  140  111.  486;  Id.  v. 
Wilson,mm.l61;  Id.Y.Stratton,  78  ^rnoZ,  144  111.  261;  Lavis  v.  R.  R. 
m.  88;  Packet  Co.  v.  True,  88  111.  Co.,  54  111.  App.  637. 
608;  R.  R.  Co.  v.  Flexman,  9  Bradw.  '  Smith  v.  Dunlap,  12  111.  184; 
250;  Id.  V.  Rector,  104  111.  296;  Lam-  Phelps  v.McGee.  18  111.  155;  Straivn 
mert  v.  R.  R.  Co.,  9  Bradw,  388;  v.  Cogsu-ell,  28  III.  457;  Lassen  v. 
Id.  V.  ShacMet,   105  111  364;  Id.  v.  Mitchell,  41  111,  101;  Sleuterw.  Wall- 


ASSUMPSIT.  135 

the  vendee  with  the  difference  between  the  contract  price  and 
that  realized  at  the  sale.* 

No.  73,    For  not  accepting  goods  made  for  defendant, 
{Commence  as  in  No.  36,  ante,  page  91.)    For  that  whereas,  on,  etc.,  in, 
etc.,  in  consideration  that  tlie  piahitiff  would  make  for  the  defendant,  at 

his  request, ,  at  the  price  of ,  {or,  if  no  price  was  named, 

say,  "  at  a  reasonable  price  for  the  same,")  and  would  deliver  to  him  the 

said ,  when  the  same  should  be  made  {if  there  were  any  terms  as  to  the 

time  or  place  of  delivery,  state  them  accordingly),  he,  the  defendant,  prom- 
ised the  plaintiff  to  accept  of  him  the  said ,  when  the  same  should  be 

so  made,  and  to  pay  him  the  said  price  for  the  same  on  the  delivery  thereof 
as  aforesaid;  and  the  plaintiff  avers  that  he  did  afterward,  to  wit,  on,  etc., 

there  make  the  said for  the  defendant,  and  thereupon  then  and  there 

was  ready  and  willing,  and  offered  to  deliver  the  same  to  him,  and  re- 
quested him  to  accept  and  pay  for  the  same  as  aforesaid.  Yet  the  defend- 
ant did  not  nor  would  then,  or  at  any  other  time,  accept  of  the  plaintiff  the 

said ,  or  pay  liim  therefor  the  price  aforesaid,  or  any  part  thereof,  but 

refuses  so  to  do. 

{Counts  may  he  added  for  goods  bargained  and  sold,  u'ork  and  materials, 
money  paid,  and  account  stated,  with  conclusion  as  in  No.  61.) 

No.  74-     For  not  delivering  goods  within  a  specified  time,  etc. 

{Commence  as  in  No.  36,  ante,  page  91.)  For  that  whereas  on,  etc.,  in, 
etc. ,  the  plaintiff,  at  the  request  of  the  defendant,  bargained  with  the  de- 
fendant to  buy  of  him,  and  the  defendant  then  and  there  sold  to  the 

plaintiff,  a  large  quantity,  to  wit, bushels  of  wheat,  at  the  price  of 

for  each  bushel  thereof,  to  be  delivered  by  the  defendant  to  the  plaintiff 

in  a  week  then  next  following,  at ,  and  to  be  paid  for  by  the  plaintiff 

to  the  defendant  on  the  delivery  thereof  as  aforesaid;  and  ia  consideration 
thereof,  and  that  the  plaintiff  had  promised  the  defendant,  at  his  request, 
to  accept  and  receive  the  said  wheat,  and  to  pay  him  for  the  same  at  the 
price  aforesaid,  he,  the  defendant,  on  the  day  first  aforesaid,  in  the  county 
aforesaid,  promised  the  plaintiff  to  deliver  the  said  wheat  to  him  as  afore- 
said: And  although  the  said  time  for  the  delivery  of  the  said  wheat  has 
long  since  elapsed,  and  the  plaintiff  has  always  been  ready  and  willing  to  ac- 
cept and  receive  the  said  wheat,  and  to  pay  for  the  same  at  the  price  afore- 
said, to  wit,  at,  etc.,  aforesaid,  yet  the  defendant  did  not  nor  would,  within 
the  time  aforesaid  or  afterward,  deliver  the  said  wheat,  or  any  part  thereof, 
to  the  plaintiff,  at,  etc.,  aforesaid,  or  elsewhere,  but  refused  so  to  do; 
whereby  the  plamtiff  has  been  deprived  of  divers  great  gains  and  profits 
which  otherwise  would  have  accrued  to  him  from  the  deliveiy  of  the  said 
wheat  to  him  as  aforesaid. 

{One  or  more  counts,  varying  the  statement,  may  be  added,  and  such  com- 
mon counts  as  the  circumstances  may  require.) 

baum,  4:^1\\.  4S;  Saladinv.  Mitchell,  111.  446;  Coal  Co.  x.  Smelting  Co., 
45  111.  79;  McNaught  v.  Dodson,  49      53  111.  App.  565. 

1  Rochling  v.  Look  Co.,  130  111.  070. 


136  ASSUMPSIT. 

Where  the  contract  is  to  deliver  generally,  and  not  in  any- 
named  time,  a  special  request  to  deliver  must  be  averred,'  or 
else  it  must  be  shown  that  the  defendant  has  put  it  out  of  his 
power  to  deliver  the  goods,  as  by  his  having  resold  them,  or 
the  like/  "Where  two  acts  are  to  be  done  at  the  same  time,  as 
selling  and  delivering,  and  receiving  and  paying,  in  an  action 
for  non-delivery  it  is  only  necessary  for  the  plaintiff  to  aver 
and  prove  a  readiness  to  pay,  whether  the  other  party  was  at 
the  place,  ready  to  deliver,  or  not/ 

No.  75.    For  not  delivering  goods  at  a  particidar  jyJace,  etc. 

{Commence  as  in  No.  36,  ante,  jjoge  91.)  For  that  whereas  on,  etc. ,  in,  etc., 
the  plaintiff,  at  the  request  of  the  defendant,  bargained  for  and  agi-eed  to 

buy  of  the  defendant  a  large  quantity,  to  wit, bushels,  of  oats,  upon  the 

following  terms,  that  is  to  say,  that  (here  set  out  the  terms  of  the  contract, 
which  may  be  thus:)  "such  oats  should  be  of  fair  quality  and  color,  and  of 

the  weight  of  pounds  per  bushel,  and  should  be  delivered  for  the 

plaintiff  within  a  reasonable  time  thereafter,  free  of  expense  to  him,  on  board 

some boat  in  the  river ,to  be  conveyed  in  such  boat  from  thence  to 

,  at  a  freight  not  exceeding cents  per  bushel,  and  that  the  plaintiff 

should  pay  the  defendant  for  such  oats  at  the  rate  of  cents  for  each 

bushel  thereof;"  and  thereupon,  in  consideration  of  the  premises,  and  that 
the  plaintiff  had  promised  the  defendant,  at  his  request,  to  accept  a  delivery 
and  shipment  of  such  oats  as  aforesaid,  and  to  pay  him  for  the  same  at  the 
rate  in  that  behalf  aforesaid,  the  defendant,  on  the  day  aforesaid,  in,  etc. , 
aforesaid,  promised  the  plaintiff  that  he,  the  defendant,  would  within  a 
reasonable  time  then  next  following  procure  to  be  delivered  and  shipped  for 
the  plaintiff,  in  manner  aforesaid,  tlie  said  quantity  of  oats,  of  such  quality, 
color  and  weight  as  aforesaid,  to  be  so  conveyed  as  aforesaid:  And  although 
a  reasonable  time  for  that  purpose  has  long  since  elapsed,  and  the  plaintiff 
was  always  during  and  since  that  time  there  ready  and  willing  to  accept  a 
delivery  and  shipment  of  such  oats  as  aforesaid,  and  to  pay  for  the  same  as 
aforesaid,  whei-eof  the  defendant  then  had  notice,  yet  the  defendant  (though 
often  thereto  requested)  did  not  nor  would,  within  such  reasonable  time  or 
afterward,  procure  to  be  delivered  or  shipped  for  the  plaintiff,  in  manner 
aforesaid  or  otherwise,  the  said  quantity  of  oats,  of  such  quality,  color  and 
weight  as  aforesaid,  or  any  oats  whatsoever,  but  refused  and  still  refuses  so 
to  do;  by  means  whereof  the  plaintiff  has  been  deprived  of  great  gains  and 
profits  which  he  might  and  otherwise  would  have  acquired  by  reselling  such 
oats  at  much  higher  prices. 

{Special  and  common  counts  may  be  added,  as  in  No.  74.) 

'  Bach  V.  Oicen,  5  T.  R.  409;  Wood  ^  Funk  v.  Hough,  29  111.  U5;  Hough 

V.  Dial,  12  111.  72.  v.  Rawson,  17  111.  588. 

2  Amory  v.  Brodrick,  5  B.  &  Aid. 
712. 


ASSUMPSIT.  137 

It  would  seem  safer,  in  a  count  like  the  above,  to  aver  a  spe- 
cial request,  but  the  precedents  in  the  books  of  forms  do  not 
contain  that  averment.' 

ON  POLICIES  OF  INSURANCE. 

No.  76.     On  a  fire  insurance  policy,  reneived. 

(After  stating  the  court,  term,  and  venue:)    A.  B.,  plaintiff,  by  C.  D., 

liis  attorney,   complains  of  the Insurance  Company,  defendant,  of  a 

plea  of  trespass  on  the  case  on  promises:  For  that*  whereas  the  defendant, 
on,  etc.,  in,  etc.,  made  its  policy  of  insurance,  and  delivered  the  same  to 

the  plaintiff,  and  thereby  then  and  there,  in  consideration  of dollars, 

to  it  paid  by  the  plaintiff,  did  insure  the  plaintiff  against  loss  or  damage  by 

fire,  to  the  amount  of dollars,  on  {here  describe  the  property  on  which 

the  insurance  was  effected.)  And  the  defendant,  for  the  consideration  afore- 
said, did  by  the  said  policy  promise  and  agi-ee  to  make  good  and  satisfy 
unto  the  plaintiff,  his  executors,  admmistrators  or  assigns,  all  such  loss  or 

damage,  not  exceeding  the  said  sum  of dollars,  as  should  happen  by 

fire  to  the  said  property  whereon  the  said  insurance  was  so  made  as  afore- 
said, from,  etc.,  at  noon,  until,  etc.,  at  noon,  such  loss  or  damage  to  be  es- 
timated according  to  the  true  and  actual  value  of  the  said  proj^ertj'  at  the 
time  such  loss  or  damage  should  happen,  and  the  amount  thereof  to  be  paid 

within days  after  notice  and  proof  of  such  loss  or  damage  should  be 

made  by  the  plaintiff,  in  conformity  to  the  conditions  annexed  to  the  said 
policy;  provided,  always,  and  it  was  by  the  said  policy  declared,  that  the 
defendant  should  not  be  liable  to  make  good  any  loss  or  damage  which 
might  happen  by  means  of  any  invasion,  insurrection,  riot,  or  civil  com- 
motion, or  of  any  military  or  usurped  power;  and  that  in  case  the  plaintiff 
had  effected  any  other  insurance  against  loss  by  fire  on  the  said  property, 
not  notified  to  the  defendant  and  indorsed  on  the  said  policy,  then  the  said 
policy  should  be  void;  and  that  if  the  plaintiff,  or  his  executors,  adminis- 
trators, or  assigns,  should  thereafter  effect  any  other  insurance  on  the  same 
property,  and  should  not  with  all  reasonable  diligence  give  notice  thereof 
to  the  defendant,  and  have  the  same  indorsed  on  the  said  policj^  or  other- 
wise acknowledged  by  the  defendant  in  writing,  the  said  policy  should 
cease,  and  be  of  no  further  effect;  and  that  in  case  of  any  other  insurance 
on  the  same  property,  whether  prior  or  subsecjuent  to  the  date  of  the  said  pol- 
icy, the  plaintiff  should  not,  in  the  event  of  loss  or  damage  of  the  said 
property,  be  entitled  to  demand  or  recover  of  the  defendant,  on  the  said 
policy,  any  gi-eater  proportion  of  such  loss  or  damage  than  the  said  amount 
by  the  said  i^olicy  insured  should  bear  to  the  whole  amount  of  insurance  on 
the  said  property;  and  that  in  case  the  building  in  the  said  policy  mentioned 
should,  at  anv  time  whilst  the  said  policy  would  otherwise  continue  in  force, 
be  appropriated,  applied  or  used  to  or  for  the  purix>se  of  carrying  on  or  ex- 
ercising therein  any  ti'ade,  business  or  vocation  denominated  hazardous  or 
extra-hazardous,  or  specified  in  the  memorandum  of  special  rates  in  the 

'  2  Chit.  PI.  370;  1  ^wan  s  Pr.  327. 


138  ASSUMPSIT. 

conditions  annexed  to  the  said  policy,  or  for  the  purpose  of  storing  therein 
any  of  the  articles,  goods  or  merchandise  in  the  same  conditions  denomi- 
nated hazardous,  or  extra-hazardous,  or  included  in  the  said  memorandum 
of  special  rates,  unless  in  the  said  policy  otherwise  specially  provided,  or 
thereafter  agreed  to  by  the  defendant  m  writing,  added  to  or  indorsed  on 
the  said  policy,  then  and  from  thenceforth,  so  long  as  the  same  building 
should  be  so  appropriated,  applied  or  used,  the  said  policy  should  cease,  and 
be  of  no  force  or  effect;  and  that  the  said  insurance  so  witnessed  by  the 
said  policy  was  not  intended  to  apply  to  or  cover  any  books  of  account, 
written  securities,  deeds  or  other  evidences  of  title  to  land,  nor  to  bonds, 
bills,  notes,  or  other  evidences  of  debt,  nor  to  money  or  bullion;  and  that 
the  said  policy  was  made  and  accepted  with  reference  to  the  said  conditions 
thereto  annexed,  which  were  to  be  used  and  resorted  to  in  order  to  explain 
the  rights  and  obligations  of  the  said  parties  to  the  said  policy,  in  all  cases 
not  therein  otherwise  specially  provided  for,  and  that  the  same  insurance 
(the  risk  not  being  clianged)  might  be  continued  for  such  further  term  as 
might  be  agreed  upon,  on  payment  of  the  premium  therefor,  and  indorse- 
ment of  such  payment  on  the  said  policy,  or  receipt  given  for  the  same;  and 
that  the  interest  of  the  plaintiff  in  the  said  policy  was  not  assignable,  unless 
by  consent  of  the  defendant,  manifested  in  writing;  and  that  in  case  of  any 
transfer  or  termination  of  the  interest  of  the  plaintiff  in  the  siid  property, 
either  by  sale  or  otherwise,  without  such  consent,  the  said  policy  should 
thenceforth  be  void.  And  the  plaintiff  avers  that  the  said  conditions  in 
the  said  policy  mentioned  are  as  follows,  that  is  to  say  :  {here  insert,  verba- 
tim, the  conditions,  or  such  parts  thereof  as  constitute  a  condition  prece- 
dent.) 
And  the  plaintiff  further  avers  that  afterward,  to  wit,  on,  etc.,  in,  etc., 

in  consideration  of  the  payment  of  the  further  sum  of dollars,  then 

and  there  made  by  the  plaintiff  to  the  defendant,  the  receipt  whereof  was  by 
the  defendant  then  and  there  acknowledged  in  writing,  and  indorsed  on  the 
said  policy,  the  defendant  continued  the  said  insurance  for  the  further  term 
of,  etc. ,  then  and  there  agreed  upon  between  the  plaintiff  and  the  defend- 
ant, to  wit,  from  the  day  last  aforesaid,  at  noon,  until,  etc.,  at  noon.  And 
thereupon,  on,  etc.,  aforesaid,  in  consideration  of  the  premises,  and  that  the 
plaintiff  had  promised  the  defendant  to  keep  and  perform  all  things  in  the 
said  policy  contained  on  the  part  of  the  plaintiff  to  be  kept  and  performed, 
the  defendant  there  promised  the  plaintiff  that  it  would  keep  and  perform 
all  things  in  the  said  policy  mentioned  on  its  part  to  be  kept  and  performed 
and  the  defendant  then  and  there  became  and  was  an  insurer  to  the  plaint- 
iff of  the  said  sum  of,  etc.,  upon  the  said  property  as  aforesaid.  And  the 
plaintiff  further  avers  (*)  that  at  the  time  of  the  making  of  the  said  policy, 
and  from  thence  until  the  happening  of  the  loss  and  damage  hereinafter 
mentioned,  he  had  an  interest  in  the  said  property  to  the  amount  of  the 
said  sum  so  by  the  defendant  insured  thereon  as  aforesaid.  And  the  plaint- 
iff further  avers  that  on,  etc.,  the  said  property  was  consumed  and  de- 
stroyed by  fire,  whereby  the  plaintiff  then  and  there  sustained  loss  and  danx- 
age  on  the  said  property  to  the  amount  of  the  sum  last  aforesaid, which  said 
loss  and  damage  did  not  happen  by  means  of  any  invasion,  insurrection, 


ASSUMPSIT.  139 

riot  or  civil  commotion,  or  of  any  military  or  usurped  power.  And  the 
plaintiff  further  avers  that  forthwith  after  the  happening  of  the  said  loss  and 
damage,  to  wit,  on,  etc.,  he  there  gave  notice  thereof  to  the  defendant,  and 
as  soon  thereafter  as  possible,  to  wit,  on,  etc. ,  there  delivered  to  the  defendant 
as  particular  an  account  of  the  said  loss  and  damage  as  tlie  nature  of  the  case 
would  admit;  which  said  account  was  signed  by  the  plaintiff,  and  accom- 
panied by  his  oath  that  the  same  was  in  all  respects  just  and  true,  and  showed 
the  value  of  the  said  property,  and  in  what  general  manner  the  said  build- 
ing was  occupied  at  the  time  of  the  happening  of  the  said  loss  and  damage, 
and  the  name  of  the  person  then  in  the  actual  possession  thereof  (or  ' '  in 
charge  thereof,  there  being  no  person  in  the  actual  possession  of  the  same  '■), 
and  when  and  how  the  said  fire  originated,  so  far  as  the  plaintiff  knew  or 
believed,  and  his  interest  in  the  said  property  at  that  time;  to  which  said 
account  was  annexed,  and  therewith  delivered,  a  certificate  under  the 
hand  and  seal  of  the  notary  public  nearest  to  the  place  of  the  said  fixe,  to 
wit,  E.  F. ,  showing  that  he,  the  said  notary,  had  examined  the  circumstances 
attending  the  said  fire,  and  the  loss  and  damage  alleged,  and  was  acquainted 
with  the  character  and  circumstances  of  the  plaintiff,  and  verily  believed 
that  the  plaintiff  had  by  misf ortiine,  and  without  fraud  or  evil  practice,  sus- 
tained loss  and  damage  on  the  said  property  to  the  amount  of dol- 
lars. And  the  plaintiff  further  avers  that  there  was  not  at  or  since  the 
time  of  the  making  of  the  said  policy  (or  "  the  continuance  of  the  said  in- 
surance as  aforesaid  ")  any  other  insurance  on  the  said  property;  and  that 
the  said  building  was  not  at  or  since  that  time  appropriated,  ai^plied  or  used 
to  or  for  the  purpose  of  carrying  on  or  exercising  therein  any  trade,  business 
or  vocation  denominated  hazardous  or  extra-hazardous,  or  specified  in  the 
said  memorandum  of  special  rates,  or  for  the  purpose  of  storing  therein 
any  of  the  articles,  goods  or  merchandise  in  said  conditions  denominated 
hazardous  or  extra-hazardous,  or  included  in  tlie  said  memorandum  of 
special  rates  (except  as  specially  j^^'ovided  in  the  said  policy  as  aforesaid, 
etc.)  (*)  And  the  plaintiff  further  avers  that  although  he  has  kept  and  per- 
formed all  things  in  the  said  policy  contained  on  his  part  to  be  kept  and  per- 
formed, and  although  he  has  sustamed  loss  and  damage  by  fire  on  the  said 
property,  in  the  manner  and  to  the  amount  aforesaid,  nevertheless  tlie  de- 
fendant, though  often  thereto  requested,  has  not  yet  paid  to  the  plaintiff  that 
amount,  or  any  part  thereof,  but  refuses  so  to  do;  to  the  damage  of  the 

plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc,     {If  more  than 

one  count,  tlie  conclusion  will  be  as  in  No.  61,  ante.) 

Policies  of  insurance  vary  so  greatly  in  their  forms  and  pro- 
visions, that  the  precedents  given  are  only  to  be  considered  as 
indicating  the  general  structure  of  the  declaration.  As  to  the 
necessity  of  the  averment  of  interest  in  the  plaintiif,  see  the 
authorities  mentioned  in  the  note.' 

>  2  Chit  PI.,  2  Am.  Ed.,  181,  note fc,  223;  7ns.  Co.  v.  3ffg.  Co.,  1  Gilm 
and  cases  cited;  Id.,  11  Am.  Ed.  181  236;  Ins.  Co.  v.  Wetmore,  32  111.  221. 
note  m,  and  cases  cited;  01.    Prec. 


140  ASSUMPSIT. 

Where  a  term  of  insurance  about  to  expire  is  continued,  and 
a  renewal  receipt  given,  such  receipt  does  not  constitute  a 
new  contract  of  insurance,  but  merely  continues  the  policy  in 
force  for  another  term;  and  if  a  loss  occurs  during  the  new 
term,  a  recovery  must  be  had,  if  at  all,  on  the  original  con- 
tract.' And  this  is  the  case,  though  the  new  premium  was 
paid  by  the  assignee,  and  the  renewal  receipt  was  given  to 
him."  It  seems  it  is  otherwise,  however,  where  a  receipt  is 
given  i-enewing  a  policy  that  has  expired." 

A  policy  of  insurance  is  not  assignable,  so  as  to  enable  the 
assignee  to  sue  in  his  own  name;*  but  where  the  assignee  of  a 
policy  has  taken  a  renewal  receipt  to  himself  and  has  paid 
the  new  premium,  he  can,  in  case  of  loss,  maintain  assumpsit 
in  his  own  name,  not  on  the  policy,  but  on  the  new  and  ex- 
press promise  of  the  insurer  to  pay  him  for  the  loss.^ 

Policies  of  insurance  are  to  be  construed  as  other  mercantile 
contracts,  but  the  conditions  and  provisions  of  such  policies 
are  to  be  construed  strictly  against  the  underwriters." 

The  following  is  merely  suggested  as  a  shorter  form  of  de- 
claring on  a  policy  of  insurance  : 

No.  77.     On  a  Hi-e  insurance  policy. 

{Commence  asinthelost  precedent.)  For  that  whereas  the  defendant,  on, 
etc.,  in,  etc.,  made  its  poUcy  of  insurance,  and  dehvered  the  same  to  the 
plaintiff;  and  for  the  consideration  therein  expressed  promised  the  plaintiff 
in  the  terms  of  the  said  policy  and  the  conditions  thereto  annexed,  which 
said  policy  and  conditions  here  follow  in  these  words  and  figures,  to  wit : 
{here  insert  the  policy  and  conditions  \eYha.iiva.)  And  the  iilaintiff  avers 
{proceed  as  in  the  last  j^recedent ,  from  the  one  asterisk  to  the  other):  Nev- 
ertheless, although  the  plaintiff  has  kept  and  performed  all  things  in  the 
said  policy  mentioned  on  his  part  to  be  kept  and  performed,  the  defendant 
has  not  yet  paid  to  the  plaintiff  the  said  amount  of  the  loss  and  damage 
aforesaid,  or  any  part  thereof,  but  refuses  so  to  do. 

'  Ins.  Co.  V.  Wetmore,  33  111.  221.  111.  App.  545;  Glover    v.   Wells,   40 

Uns.  Co.  V.  Wetmore,  32  111.  221.  111.  App.  353. 

^  Ins.  Co.    V.    Walsh,   54   IlL  164;  */«s.  Co.  v.  iJerre?/,  34  111.  46. 

Ins.  Co.  V.  Hervey,  34  111.  46.  «  7ns.  Co.  v.  Eddy,  49  111.  106;  Ins. 

4  Ins.  Co.  V.  Wetmore,  32  111.  221;  Co.  v.  Brockway,   39  111.    App.  43; 

Ins.   Co.   V.   Hervey,  34  111.  46.  and  Ass'n  v.  Frohard,  33  111.   App.  183; 

cases    cited;     Wilson  v.  Hakes,  36  Hecdey  v.  Ass'n,  ISS  III.  5QI;  Ins.  Co. 

V.  Gordon,  121  111.  372. 


ASSUMPSIT. 


141 


This  mode  of  declaring — alleging  that  the  defendant  prom- 
ised in  the  terms  of  a  certain  writing,  and  setting  it  out  in  hceo 
verba — is  sufficient,'  and  has  some  advantages  where  the  con- 
tract is  of  the  vexatious  length  and  complexity  usual  in  policies 
of  insurance. 

The   principal   Illinois   authorities  on   the  subject  of  Jlre,^ 


'  Man.  &  Gr.  709;  16  A.  &  E.  N. 
S.  90;  1  Freeman's  PI.  476;  Ins.  Co. 
V.  Rogers,  119  111.  474. 

Uns.  Co.  V.  a  Neil,  13  111.  89;  Nor- 
ton V.  7ns.  Co.,  16  111.  236;  Ins.  Co. 
V.  Wright,  23  111.  462;  Id.  v.  McCor- 
mick,  24  111.  455;  Ins.  Co.  v.  Staaden, 
29  111.  38;  Id.  v.  Frost,  37  111.  333;  Id. 
V.  Wolf,  37  lU.  354;  Id.  v.  Schitter, 
38  111.  166;  Pomeroy  v.  Lis.  Co.,  40 
111.  398;  Schmidt  v.  Ins.  Co.,  41  lU. 
295:  Ins.  Co.  v.  Stivers,  47  111.  86;  Id. 
T.  Botts,  47  111.  516;  Ducat  v.  City, 
48  lU.  172;  7ns.  Co.  v.  Mark,  45  lU. 
482;  Id.  V.  Favorite,  49  111.  259;  Id. 
V.  Chestnut,  50  111.  Ill;  Id.  v.  3Ic- 
Dowell,  50  111.  120;  Id.  v.  Malloy,  50 
IlL  419;  Id.  V.  Ajiapow,  51  lU.  283; 
Id.  V.  Maguire,  51  111.  342;  Honorev. 
Ins.  Co.,  51  111.  409;  Ins.  Co.  v. 
Spankneble,  53  lU.  53;  Id.  v.  Booner, 
52  111.  442;  Id.  v.  Huckberger,  53  111. 
464;  Keith  v.  7ns.  Co.,  52  111.  518;  7ns. 
Co.  V.  Fix,  53  111.  151;  Id.  v.  Holz- 
graf,  53  111.  516;  Id.  v.  McGlesher, 
54  lU.  513;  Id.  v.  Eddy,  55  111.  213; 
7A  V.  7»-es,  56  111.  402;  Id.  v.  Cooper, 
60  III.  509;  7d.  v.  Hauselein,  60  III. 
521;  7d.  V.  Tre6sfe/%  69  111.  392;  Id. 
V.  Fish,  71  111.  620;  7d.  v.  Farrish, 
73  111.  166;  Id.  v.  Barrington,  73  111. 
230;  7d.  v.  Dunsmore,  75  111.  14; 
Edivard  v.  7ns.  Co.,  74  111.  84;  7n.s. 
Co.  V.  Cor?/,  83  111.  453;  7ns.  Co.  v. 
A'eZson,  75  111.  548;  Id.  v.  Padfleld, 
78  111.  167;  7d.  v.  Shipman,  77  111. 
189;  Id.  V.  Johnson,  77  111.  598;  7d. 
V.  iJttbm,  79  111.  402;  Id.  v.  GonZd, 
SOUL  388;  Id.  v.  Congr.  80 lU.  558;  Id. 


V.  Gunning.  81  111.  236;  7d.  v.  Roths- 
child, 82  111.  166;  Id.  v.  Jackson,  83 
111.  302;  7d.  v.  McGinnis,  87  111.  70; 
7(7.  V.  IFeZZs,  89  111.  82;  Id.  v.  Ward, 
90  111.  545;  7d.  v.  Foster,  90  111.  121; 
Id.  V.  Htdman,  92  111.  145;  7d.  v. 
i^osfer,  92  111.  334;  Id.  v.  TncA-er,  92 
111.  64;  Johnson  v.  Ins.  Co.,  91  111.  92; 
7ns.  Co.  Y.McKee,  94111.  494;  7ns.  Co. 
V.  OZco^f.  97  111.  439;  Id.  x.  Chipp,  93 
111.  96;  Id.  V.  Scammon,  100  111.  644; 
Scammonw.  Ins.  Co.,  101  111.  631;  C. 
^.  Co.  V.  Scammon,  102  111.  46;  7ns. 
Co.  V.  Garland,  108  111.  220;  Thomas 
V.  7ns.  Co.,  108  111.  91;  SchroederY. 
Ins.  Co.,  109  lU.  157;  7ns.  Co.  v. 
Steiger,  109  111.  254;  Id.  v.  ireaj-i/, 
4  Bradw.  74;  Id.  v.  Mann,  4  Bradw. 
485;  7d.  v.  Clancey,  9  Bradw.  137; 
7d.  V.  Wrenn,  11  Bradw.  242;  W^. 
A.  Co.  V.  Mason,  5  Bradw.  141;  7?is. 
Co.  V.  Grunert,  112  111.  72;  C.  M. 
Co.  V.  ^ss'n.  Co.,  118  111.  398;  7ns. 
Co.  V.  Barren,  114  111.  102;  Id.  v. 
Broivn,  123111.  356;  7d.  v.  Steiger,  124 
111.  84;  Schimp  v.  7ns.  Co.,  124  111. 
355;  7ns.  Co.  v.  La  Pointe,  118  111. 
387;  Id.  V.  Gordon.  121  111.  372:  7d. 
V.  TTtcfc,  135  111.  363;  Id.  v.  Cotton, 
135  III.  135;  7d.  v.  Pulver,  136  111. 
332;  C.  ^.  Co.  v.  Scammon,  126  111. 
360;  7ns.  Co.  v.  Riiskman,  127  111. 
372;  Id.  V.  Kletoer,  129  111.  607;  7d. 
V.  Cneefc,  130  111.  351;  Id.  v.  PecA;, 
133  111.  233;  Id.  v.  Kinneard,  136  111. 
201;  7d.  V.  Storig,  137  111.  651;  Car- 
lock  V.  7ns.  Co.,  138  111.  210;  7ns. 
Co.  V.  Brookivay,  138  111.  644;  Id. 
V.  iJace,  143  111.  338;  Id.  v.  ^ef/ie/, 


U2 


ASSUMPSIT. 


llfe^^  and  accident ''  insurance  are  given  below.     See  also  ob- 
servations under  Form  No.  154,  post. 

MISCELLANEOUS    DECLARATIONS    IN  ASSUMPSIT. 

Ko.  75.     On  jjromise  to  he  accountable  for  goods  sold  to  a  third  person. 

(Commence  as  in  No.  24,  ante,  to  the  (*)  then  proceed:)  For  that,  whereas, 
heretofore,  to  wit,  on,  etc.,  at,  etc.,  in  consideration  that  the  plaintiff,  at 
the  special  instance  and  request  of  the  defendant,  would  sell  and  deliver  to 
one  O.  P.  on  credit,  all  such  goods  as  the  said  O.  P.  should  have  occasion  for 
and  require  of  the  plaintiff  in  the  way  of  the  plaintiff's  trade  and  business  of  a 
(inerchant),  he,  the  defendant,  undertook,  and  then  and  there  promised  the 
plaintiff  to  be  accountable  to  the  plaintiff  for  whatever  goods  the  plaintiff 
should  sell  and  deliver  to  the  said  O.  P.  as  aforesaid;  and  the  plaintiff  avers 
that  he,  confiding  in  the  said  promise  of  the  defendant,  did,  afterward,  to 
wit,  on,  etc.,  at,  etc.,  aforesaid,  sell  and  deliver  to  the  said  O.  P.,  on  cer- 


142  111.  537;  Id.  v.  Scammon,  144  111, 
490;  Id.  V.  Stock,  149  111.  319;  Id.  v. 
Hodges,  149  lU.  298;  Id.  v,  Pacand, 
150  111.  245;  Heuer  v,  Ins.  Co.,  151 
111.  331;  Piatt  v.  Ins.  Co.,  153  III, 
113. 

>Ju.s.  Co.  V.  Fennell,  49  111.  180; 
Foley  V.  McMahan,  73  111.  66;  Ins. 
Co.  V.  Schlitz,  73  111.  586;  Ins.  Co. 
V.  Hogan,  80  111.  35;  Society  v.Win- 
throp,  85  111.  537;  Ins.  Co.  v.  Gray, 
91  111,  159;  Id.  V.  Pierce,  75  111.  426; 
J^.  V.  Anderson,  77  111.  384;  Id.  v, 
3Iudler,  77  111.  22;  People  v.  Phelps, 
78  111.  147;  Ins.  Co.  v.  Foote,  79  III, 
361;  Id.  v.  Warner,  80  111.  410;  So- 
ciety V.  Baldwin,  86  111.  479;  Ins.  Co. 
V.  Palmer,  81  111.  88;  Id.  v.  Baker, 
85  111.  410;  Id.  v.  Robinson,  98  111. 
324;  Lawrence  v.  Ins.  Co. ,  5  Bradw, 
280;  7ns.  Co.  v,  Latvrence,  8  Bradw, 
488;  St.  C.  Co.  v.  Fielsom,  97  111. 
474;  Ins.  Co.  v.  Wecic,  9.  Bradw. 
358;  Id.  V.  Paul,  10  Bradw.  431; 
Glanz  V.  Gloeckler,  104  111.  573; 
Johnson  v.  Van  Epps,  110  111.  551; 
Ass'n  V.  Hoffman,  110  111.  603;  Miller 
V.  Ins.  Co.,  110  111.  102;  Martin- v. 
Stubbings,  126  lU.  399;  Ass'n  v. 
Blue,  120111. 123;  7ns.  Co.  v.  Rogers, 
119  111.  478;  Ins.   Co.  v.  American, 


119  111.   331;  Pinneo  v,  Goodspeed, 

120  111.  529;  Cov.  Ass'n  v.  Sears,  114 
111.  110;  Ass'nx.Hall,  118  111.  171; 
Hayes  v.  Ins.  Co.,  125  111.  626;  A',  of 
H.  V.  Dalberg,  138  111.  508;  Alex- 
ander V.  Parker,  144  111.  355;  A.  O. 
U.  W.  V.  Belcham,  145  111.  308; 
Hansen  v,  K.  of  H,  140  111.  301; 
Ass'n  V,  Robinson,  147  111.  138;  Id.  v, 
Lommis,  142  111.  560;  Id.  v.  Mueller, 
151  m.  254. 

^Acc.  Ass'n  V,  Tuggles,  138  111. 
428;  Id.  V.  Taylor,  42  111.  App.  97; 
Id.  V,  Wanner,  24  111,  App.  357;  Id. 
V,  Frohard,  134  111,  228;  Ben.  Ass'n 
V,  Sears,  114  111.  108;  Lodge  v.  Cohn, 
20  Bradw.  335;  Supjnger  v.  Ben. 
A.ss'n,  20  Bradw.  599;  Beii  Ass'n  v. 
Sears,  114  111,  536;  Ace.  Ass'n  v. 
3Iiller,  26  111,  App,  230;  Id.  v,  Reil, 
38  111.  App.  425;  Healey  v.  Ace. 
Ass'n,  133  111,  560;  7ns,  Co.  v.  Etten, 
40  111.  App.  233;  Ace.  Ass'n  v.  Mil- 
liard, 43  111,  App,  148;  Id.  v,  Kelsey, 
46  111.  App.  371;  Getman  v.  7jis.  Co., 
46  111.  App.  489;  Shaffers.  Ins.  Co., 
31  111.  App.  113;  Ace.  Ass.  v,  Stoiie, 

50  111.  App.  222;  Id.  v.  Sanford,  50 
111.  App.  424;  Mueller  v.  ,4cc,  ^ss'n, 

51  111,  App,  40. 


ASSUMPSIT.  143 

tain  credit,  then  and  there  agreed  upon  between  the  plaintiff  and  the  said  O. 

P..  to  wit, months,  certain  goods  of  great  value, wliich  he,  the  said  O.  P. , 

then  and  there  had  occasion  for  and  required  in  the  way  of  the  plaintiff's  said 
trade  and  business,  and  at  and  for  certain  reasonable  prices  then  and  there 
agreed  upon  by  and  between  the  plaintiff  and  the  said  O.  P.,  amounting  in 

the  whole  to  a  large  sum  of  money,  to  wit,  the  sum  of dollars;  and 

although  the  said  credit,  and  the  time  of  payment  of  the  price  of  the  said 
goods,  by  the  said  O.  P.  to  the  plaintiff,  as  aforesaid,  hath  long  since 
elapsed,  yet  the  said  O.  P.  has  not,  although  requested  by  the  plaintiff  so  to 
do.  as  yet  paid  the  said  sum  of dollars,  or  any  part  thereof,  to  the  plaint- 
iff, but  has  hitherto  neglected  and  refused,  and  still  neglects  and  refuses  so 
to  do;  of  all  which  said  premises  the  defendant  afterward,  to  wit,  on,  etc., 
had  notice;  yet  the  defendant,  not  regarding  his  promise  and  undertaking, 
has  not  as  yet  accounted  to  the  plaintiff,  or  paid  him  the  said  sum  of  money 
for  the  said  goods,  or  any  part  thereof,  although  requested  so  to  do;  and  has 

neglected  and  refused  so  to  do;  and  the  said  sum  of dollars  still  remains 

wholly  due  and  unpaid  to  the  plaintiff;  to  the  damage  of  the  plaintiff  of 
dollars;  and  therefore  he  brings  his  suit,  etc. 

E.  F..  Attorney  for  Plaintiff. 
(Add  copy  of  account  sued  on.) 

No.  79.    Declaration  on  promise  to  pay  money  as  difference  in  exchange  of 

property. 

(Commence  as  in  No.  24.  ante,  to  the  (*)  aiid  then  proceed:)  For  that 
whereas,  heretofore,  to  wit,  on,  etc.,  at,  etc.,  in  consideration  that  the 
plaintiff,  at  the  special  instance  and  request  of  the  defendant,  would  deliver 
to  the  defendant,  a  certain  (horse)  of  the  plaintiff,  of  great  value,  to  wit, 
etc.,  in  exchange  for  a  cei'tain  (horse)  of  him,  the  defendant,  the  defendant 
undertook,  and  then  and  there  promised  the  plaintiff  to  deliver  the  said 
(horse)  of  the  defendant,  to  the  plaintiff,  and  to  pay  the  plaintiff  a  certain 

sum,  to  wit,  the  sum  of •  dollars,  in  exchange  for  the  said  (horse)  of  the 

plaintiff;  and  the  plaintiff  avers  that  he  did,  afterward,  to  wit,  on  the  same 
day  aforesaid,  at  the  place  aforesaid,  deliver  to  the  defendant  the  said 
(horse)  of  the  plaintiff;  and  although  the  defendant,  in  part  performance  of 
his  said  promise  and  undertaking,  did  then  and  there  deliver  to  the  plaint- 
iff the  said  (horse)  of  the  defendant,  in  exchange  for  the  said  (horse)  of  the 
plaintiff,  yet  the  defendant,  not  further  regarding  his  said  promise  and 
undertaking,  has  not,  although  often  requested,  as  yet  paid  to  the  plaintiff 

the  said  sum  of dollars,  or  any  part  thereof,  but  neglects  and  refuses 

BO  to  do,  to  the  damage  of  the  plaintiff  of  dollars;  and  therefore  he 

brings  his  suit,  etc. 

E.  F. ,  Attorney  for  Plaintiff. 

No.  SO.    Declaration  on  auTitten  contract  for  employment — Plaintiff  dis- 
charged icithout  cause. 

{Commence  as  in  No.  24  ante,  to  the  (*)  and  then  proceed:)  For  that 
whereas,  heretofore,  to  wit,  on,  etc.,  at,  etc.,  the  plaintiff  then  and  there 
being  a  bookkeeper  by  occupation,  and  the   defendant  a  merchant,  by  a 


144  ASSUMPSIT. 

certain  agreement  in  writing,  then  and  there  entered  into  between  the 
plaintiff  and  defendant,  the  defendant  agreed  to,  and  did  employ  the  plaint- 
iff to  keep  the  books  and  accounts  of  the  defendant  connected  with  his  said 

business  as  a  merchant,  for  the  period   of  years  from  the  date  of  said 

contract;  and  the  plaintiff  then  and  there  acce^ited  the  said  emploj^ment, 
and  in  consideration  thei'eof ,  the  defendant  then  and  there  undertook  and 

promised  the  plaintiff  to  pay  him  for  such  services  the  sum  of  dollars 

per  annum,  payable  monthly;  and  the  plaintiff  further  avers,  that  he  then 
and  there  entered  into  the  employment  of  the  defendant  as  such  book- 
keeper, and  continued  therein  until  on.  etc.,  when  the  defendant,  without 
any  reasonable  or  just  cause,  discharged  the  plaintiff  from  such  service 
and  employment,  and  refused  to  allow  the  plaintiff  to  continue  therein;  and 
the  plaintiff  further  avers  that  he  has  always  been  ready  and  willing  and 
has  offered  the  defendant  to  continue  in  the  service  of  the  defendant  as 
aforesaid,  and  to  perform  all  the  duties  required  of  him  to  be  performed, 
according  to  the  terms  of  said  contract;  and  the  plaintiff  further  avers  that 
there  is  now  due  him  from  the  defendant  a  large  sum  of  money,  to  wit,  the 

sum  of dollars,  being  the  amount  due  the  plaintiff  under  said  contract, 

from  the  date  of  his  wrongful  discharge  as  aforesaid,  until,  etc. 

And  the  plaintiff  further  avers  that  afterward,  to  wit,  on,  etc.,  he  re- 
quested the  defendant  to  pay  him,  the  plaintiff,  the  said  sum  of  money,  but 
the  defendant  refused,  and  still  refuses  so  to  do;  and  the  said  sum  of  money 
remains  wholly  due  and  unpaid  to  the  plaintiff;  to  the  damage  of  the 
plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc. 

E.  F.,  Attorney  for  Plaintiff. 
{Addcopij  of  contract  sued  on.) 

No.  81.    Declaration  on  a  verbal  contract  of  employment — Plaintiff  dis- 
charged unthout  cause. 

{Commence  as  in  No.  24 ,  ante,  to  the  (*)  a7id  then  proceed : )  For  that 
whereas,  heretofore,  to  wit,  on,  etc.,  at  etc.,  the  defendant  then  and  there 
being  a  merchant,  and  the  plaintiff  a  salesman,  in  consideration  that  the 
plaintiff  would  enter  into  the  employment  of  the  defendant  as  such  sales- 
man, the  defendant  then  and  there  undertook  and  promised  the  plaintiff  to 
employ  him  as  such  salesman,  for  the  period  of  one  3'ear  from  said  date; 

and  to  pay  him,  the  plaintiff,  for  such  services  the  sura  of dollars,  to 

be  paid  in  monthly  installments  of dollars  each,  at  the  end  of  each 

and  every  month:  and  the  plaintiff,  in  consideration  of  such  employment 
and  salary  to  be  paid,  on,  etc.,  entered  into  the  service  of  the  defendant  as 
such  salesman,  and  continued  therein  until,  on,  etc.,  when  the  defendant, 
without  any  reasonable  cause,  wrongfully  discharged  the  plaintiff  from  his 
said  service,  and  refused  to  permit  the  plaintiff  to  complete  his  contract  for 
service  as  aforesaid;  and  the  plaintiff  further  avers,  that  at  the  time  of  his 
discharge,  and  from  thence  until  the  expiration  of  the  period  of  his  employ- 
ment, he  was  ready,  able  and  willing  to  perform  the  duties  of  such  service 
for  the  defendant,  and  in  every  respect  to  comply  with  the  terms  of  said 
contract  with  the  defendant;  and  the  plaintiff  further  avers  that  by  reason 


ASSUMPSIT.  145 

of  the  premises  the  defendant  became  liable  to  pay  the  plaintiff  the  full 
amount  of  the  salary  so  promised  to  be  paid  for  the  full  period  of  one  year, 
and  that  there  is  now  due  from  the  defendant  to  the  plaintiff,  under  said 

contract,  a  large  sum  of  money,  to  wit, dollars,  and  although  often 

requested,  the  defendant  refuses  to  pay  the  same,  or  any  part  thereof,  to 
the  plaintiff;  and  the  said  simi  of  money  remains  due  and  unpaid  to  the 

plaintiff;  to  the  damage  of  the  plaintiff  of dollars;  and  therefore  he 

brings  his  suit,  etc. 

E.F.,  Attorney  for  Plaintiff. 
(Add  copy  of  account  sued  on.     Coviinon  counts  may  also  be  added.) 
10 


CHAPTER  V. 

DEFENSES  TO  THE  ACTION  OF  ASSUMPSIT. 
THE  GENERAL  ISSUE. 

The  most  usual  plea  by  way  of  traverse,  in  the  action  of  as- 
sumpsit, is  what  is  called  the  general  issue — non  assumjysit — 
which  imports  a  general  denial  of  all  the  material  allegations 
in  the  declaration. 

The  declaration  in  an  action  of  assumpsit  states  that  the  de- 
fendant, upon  a  certain  consideration  set  forth,  made  a  certain 
promise  to  the  plaintiff.  The  plea  of  7ion,-assumj)sit,  or  gen- 
eral issue,  states  that  the  defendant  "did  not  promise  in  man- 
ner and  form,"  etc.  It  would  seem  at  first  glance  that  this 
only  put  in  issue  the  promise  as  alleged  in  the  declaration. 
A  much  wider  effect,  however,  is  given  to  this  plea.  The  law 
will  always  imply  a  promise  in  consideration  of  an  existing  debt 
or  liability;  and  this  action  may  consequently,  as  we  have  seen, 
be  founded  upon  an  implied  promise,  as  well  as  upon  one  ex- 
pressed. When  the  promise  relied  on  is  an  implied  one,  and 
the  plea  of  non-assumpsit  is  interposed,  the  plaintiff  must 
prove  on  the  trial  the  liability  from  which  the  implied  prom- 
ise arises;  and  in  such  case  it  is  proper  that  the  defendant 
should,  under  his  plea  denying  the  promise,  be  permitted 
to  show  any  circumstance  by  which  the  liability  is  disproved. 
This  plea  puts  in  issue  the  contract  or  promise,  as  stated  in 
the  plaintiff's  declaration,  and  enables  the  defendant  to  show 
that  he  never  in  fact  contracted  at  all;  and  also,  that  he  did 
not  contract  in  the  manner  stated  in  the  declaration,  and  thus 
to  take  advantage  of  any  material  variance. 

A  special  plea  which  simply  traverses  a  portion  of  the  facts 
which  the  plaintiff  is  bound  to  prove  in  order  to  establish 
prima  facie  a  right  to  recover  under  his  declaration,  is  bad  as 

(146) 


DEFENSES   TO   THE   ACTION   OF   ASSUMPSIT.  147 

amounting  to  the  general  issue;  ^  and  when  the  general  issue 
and  special  pleas  are  pleaded,  and  the  matter  of  the  special 
pleas  can  be  given  in  evidence  under  the  general  issue,  the 
special  pleas  are  obnoxious  to  a  special  demurrer,^  and  may  be 
stricken  from  the  files,^  even  after  a  general  demurrer  thereto 
has  been  overruled.* 

The  plea  of  the  general  issue  compels  the  plaintiff  to  prove 
every  essential  averment  in  his  declaration  that  goes  to  make 
up  the  liability  of  the  defendant.^  Under  this  plea,  however, 
the  character  in  which  the  plaintiff  sues  is  admitted.®  If  the 
suit  is  brought  by  a  corporation,  the  defendant,  by  pleading 
the  general  issue,  admits  the  plaintiff's  right  and  capacity  to 
sue;  if  he  wishes  to  deny  the  existence  of  the  corporation,  he 
should  put  in  a  plea  for  that  purpose.''  It  can  not  be  put  in 
issue  by  the  general  issue  and  notice  denying  that  the  plaintiff 
is  a  corporation.^ 

Evidence  tending  to  prove  payment  may  be  given  in  evi- 
dence under  the  general  issue,'  but  evidence  of  set-off  can  not 
be.'"  If  the  fact  of  usury  appears  by  the  declaration,  it  need 
not  be  specially  pleaded;"  and  the  same  is  true  in  some  cases 
of  the  defense  of  the  statute  of  limitations."  The  non-joinder 
of  a  party  as  plaintiff  may  also  be  shown  under  the  general 
issue." 

When  the  defendant  desires  to  put  in  issue  the  execution  of 
a  note,  or  other  instrument  specially  declared  on,  it  would 

1  Kroebel  v.  Kircher,  33111.  308;  R.  Linville  v.  Earlyxnne,  4  Blackf.469 
R.  Co.  V.  Johnson,  34  111.  389;  John-  Freeman  v.  Mill  Co.,  38  Maine  343 
sonv.  UnwersiYy,  35 111.  518.  McNulta  v,   LocA;r?dge,  137  III.  270 

2  Manny  v.  Rixford,  44  111.  129;  '  Mclntire  v.  Preston,  5  Gilm.  48 
Ogden  v.  Lucas,  48  111.  492;  Wad-  McNulta  v.  Lockridge,  137  111.  270 
hams  V.  Simn,  109  111.  47;  Edwards  Freeman  v.  Mill  Co.,  38  Maine  343. 
V.  Tnistees,  30  111.  App.  531.  8  Bailey  v.  Bank,  127  111.  332. 

^  Manny  \.  Rixford,   44  111.  129;  ^  CreicsY.  Bleakley.  Will  21:  Gray 

Oovernor  v.  Lagow,  43  111.  134.  v.  Tunstall,   1   Hemp.    558;    1  Chit. 

*R.  R.  Co.  V.  Johnson,  34  111.  389,  PI.  418-20. 

*  Diuiley  v.  Sumner,  5  Mass,  438;  '"  Kennard  v.   Secor,  57  111.  App. 

R.  R.  Co.  V.  Brotcn,  23111,  94;  Gay  415. 

V.  Keys,  30  111.  413;  Conant  v.  Grif-  "  Drake  v.  Latham,  50  111.  270. 

fin,  48    111.  410;    see    Governor  v,  '^  Thomi^son  v.  Reed,  48  III,  118. 

Lagow,  43  111.  134.  '^  Henrichsenv.  Miidd,  33  111.  47G; 

®  McKinley  v.  Braden,  1  Scam,  64;  Dement  v.  Rokker,  126  111.  191. 


148  DEFENSES   TO    THE   ACTION    OF   ASSUMPSIT. 

seera  that  the  plea  of  non-asstimjysit^  verified  by  affidavit,  is  the 
proper  plea  under  the  statute  of  Illinois.'  It  is  not  competent 
under  the  general  issue  to  show  a  total  or  partial  failure  of 
the  consideration  of  a  promissory  note."  In  a  suit  by  an  agent 
against  his  principal,  for  services  performed,  the  defendant 
may  under  the  general  issue  show  gross  misconduct,  fraud, 
negligence  and  unskillfulness  on  the  part  of  the  plaintiff  in 
the  performance  of  his  duties,  and  thus  defeat  his  right  to 
compensation.^ 

Under  the  general  issue  in  assumpsit,  the  defendant's  covert- 
ure at  the  time  of  making  the  contract  may  be  given  in  evi- 
dence.* Damages  for  delay  in  completing  work  under  a  con- 
tract may  be  recouped  under  the  general  issue.^  Recoupment 
is  permissible  under  the  general  issue,  in  a  suit  for  the  price 
of  an  article  sold,  where  there  was  a  warranty  of  the  article 
and  the  evidence  shows  a  breach  of  the  warranty.* 

No.  82.    Plea  of  non-assumpsit. 
In  the Court. 


Term,  18—. 


C.  D. ) 

s.   V. 


ats.   V  Assumpsit. 
A.  B.  )      And  the  defendant,  by  E.  F.,  his  attorney,  comes  and  defends 
the  wrong  and  injury  wlien.  etc.,  and  says  that  he  did  not  promise 
in  manner  and  form  as  the  plaintiff  has  above  thereof  complained  against 
him;  and  of  this  he  puts  himself  upon  the  country,  etc. 

1  Hinton  v.  Husbands.  3  Scam.  eott  v.White,  18  111.  App.  322;  Har- 
187;    Warren    v.   Chambers,  12  111.      vey  v.  Cook,  24  111.  App.  134. 

124;  SJmfeldt  x.  Seymour,  21  111.  524;  ^  Streeter  v.  Streeter,  43  111.  155;  1 

see  Stevenson  v.  Farnsworth,  2  Gilm.  Chit.  PI.  388,  417. 

715;  Hunt  v.  Weir,  29  111.  83;   Mur-  ^  Cook  v.  Preble,  80  III.  381;  Maijer 

chie  V.  PecJc,  57  111.  App.  396;  Will-  v.  Mitchell,  59  111.  App.  26. 

iams    V.  Pow.  Co.,  36  111.  App.  107;  «  Higgins   v.  Lee,  16  111.495;  Bah- 

By.  Co.  V.  Carson.  51  111.  App.  552;  cock  v.  Trice,  18    111.  420;    Hears  v. 

Renting   Co.  v.  Hutchinson,  25  111.  Nicols.  41    111.  207;    Hutt  v.  Burck- 

App.  476.  man,  55  111.  441;    Murry  v.  Carlin, 

2  Rose  V.  Mortimer,  17  111.  475;  67  111.  286;  Cook  v.  Preble,  80  111. 
Keith  V.  Mafit,  38  111.  303;  Swain  v.  381;  Wadhams  v.  Swan,  109  111.  46; 
Caioood,  2  Scam.  505;  Leggat  v.  Tidly  v.  Ron  Works,  115  lU.  544; 
Sands,  60  111.  158;  Schroier  v.  Wes-  McCormick  v.  Robinson,  60  111. 
sel,  89  111.  113.  App.  253;    Underwood  v.  Wolf,  131 

3  Denew  v.  Deverell,  3  Camp.  451;  111.  425. 
Dodge  v.  Trilsen,  12  Pick.  328;  Pres- 


DEFENSES    TO    THE   ACTION    OF    ASSUMPSIT.  149 

AFFIDAVIT    OF    MERITS. 

In  Illinois,  were  the  plaintiff  files  with  his  declaration  an 
affidavit  of  his  claim,  the  defendant  must  file  with  his  plea  an 
affidavit  of  merits; '  and  for  want  of  such  affidavit  the  plea 
will  be  stricken  from  the  files.'  If  the  affidavit  is  defective, 
the  court,  in  its  discretion,  may  grant  leave  to  amend,  upon 
terms,  such  as  showing  a  meritorious  defense.''  ThQ  statute 
has  not  made  it  obligatory  on  the  defendant  to  set  out  in  de- 
tail his  defense  in  an  affidavit  of  merits  filed  with  his  pleas.' 

An  affidavit  which  states  that  the  defendant  has  a  good  and 
valid  defense  to  the  whole  of  the  plaintiff's  demand  upon  the 
merits,  as  he  verily  believes,  is  a  sufficient  compliance  with  the 
requirements  of  the  statute.  If  it  meets  all  the  substantial 
requirements  of  the  statute  it  will  be  sufficient,  although  not 
in  its  precise  words." 

The  evident  purpose  of  the  statute  is  to  facilitate  the  collec- 
tion of  debts,  by  cutting  off  pleas  which  are  without  foundation 
in  fact,  and  are  interposed  merely  for  delay.  If  the  defendant 
attempts  to  state  the  facts  of  his  defense,  and  the}^  are  insuffi- 
cient, the  affidavit  will  be  bad,  and  may  be  stricken  from  the 
files.' 

No.  83.    Affidavit  of  merits,  to  he  filed  with  plea. 

{Title  of  court  and  cause.) 

C.  D.  makes  oath  and  says  that  he  is  the  defendant  in  the  above  entitled 
cause,  and  that  he  verily  believes  that  he  has  a  good  defense  to  this  suit, 
upon  the  merits,  to  (*)  the  whole  of  the  plaintiff's  demand.  C.  D. 

(Add  jurat.) 

'  Rev.  Stat.  (1893),  1076;   Rev.  Stat.  v.  Crooker,   83  111.    556;    C^dver  v. 

(1895),  1160;  2  Starr  &  Curtis   1801;  Johnson,  90  111.  91. 

Kassings    v.     Griffith,   86   111.    265;  *  Beardsley  v.    Gosling,  86  111.  58; 

Honore  v.  Bank,  80  111.  489.  Hayes  v.  Loomis,  84  111.  18;  Wads- 

^  Filkins    v.   Byrne,    72  111.    101;  tcorth  y.  Bank.  84  HI.  272;    McCor- 

Bank  v.  Hull,  74  111.  106;  Goldie  v.  viick  v.  Wells,  83  111.  239. 

McDonald,  78  111.  605;    Coursen    v.  *  Harrison  v.  Willett,  79  111.  482; 

Browning,  86  111.  57;    Braidicood  v.  Stuber  v.  Schack,  83  111.  191;  McCor- 

Weiller,  89  ill.  606;  Bailey  v.  Bank,  mick  v.  Wells,  83  111.  239;    Hayes  v. 

127  111.332;  Truesdell  y.  Hunter,  2S  Loomis,  84  111.    18;    Wadsicorth  v. 

111.  App.  292.  Bank,  84  111.  272. 

^McKichan  v.  Follett,  87   111.  103;  ^Stuber  v.  Shack.  83  111.  191;  Mc- 

Hays  V.  Loomis,  84  111.  18;  McCord  Cord  v.  Crooker,  83  111.  556. 


150  DEFENSES    TO   THE  ACTION    OF    ASSUMPSIT. 

The  affidavit  may  be  sworn  to  by  one  of  several  defendants 
pleading  jointly.'  If  the  defense  is  to  a  part  only  of  the  de- 
mand, the  affidavit  may  be  as  in  the  above  form  to  the  asterisk, 
and  will  then  proceed   thus : 

"  a  part  of  the  plaintiff's  demand,  which  said  part  amounts  to dollars, 

accoi'ding  to  the  best  of  his  judgment  and  belief." 

An  affidavit  stating  that  the  defendant  has  a  good  defense  as 
to  all  of  the  plaintiff's  demand,  except  a  certain  sum  named,  is 
a  virtual  admission  that  the  sum  thus  excepted  is  due  to  the 
plaintiff.'  And  he  may  take  judgment  therefor,  regardless  of 
pleas  to  the  whole  cause  of  action.' 

GENERAL  ISSUE,  WITH  NOTICE  OF  SPECIAL  MATTERS. 

The  statute  of  Illinois  provides  that  "  the  defendant  may 
plead  as  many  matters  of  fact  in  several  pleas  as  he  may  deem 
necessary  for  his  defense,  or  may  plead  the  general  issue,  and 
give  notice  in  writing  under  the  same  of  the  special  matters 
intended  to  be  relied  on  for  a  defense  on  the  trial;  under  which 
notice,  if  adjudged  by  the  court  to  be  sufficiently  clear  and  ex- 
plicit, the  defendant  shall  be  permitted  to  give  evidence  of  the 
facts  therein  stated,  as  if  the  same  had  been  specially  pleaded, 
and  issue  taken  thereon;"  and  that  "  the  defendant  in  any  ac- 
tion brought  u])on  any  contract  or  agreement,  either  expressed 
or  implied,  having  claims  or  demands  against  the  plaintiff  in 
such  action,  may  plead  the  same,  or  give  notice  thereof  under 
the  general  issue,  or  under  the  plea  of  payment." 

Such  notice  relieves  the  defendant  of  the  necessity  of  plead- 
ing specially  any  facts  not  provable  under  the  general  issue, 
and  to  introduce  evidence  in  their  support,  if  material  and  ex- 
plicitly stated,  as  if  the  same  had  been  specially  pleaded. 
The  court,  on  the  trial,  must  determine  the  materiality  of  the 
facts  stated.  But  in  no  sense  does  the  notice  take  the  place 
of  the  general  issue,  or  the  plea  of  no7i  est  factum,  or  the  like 
plea." 

•SHn77iv.  Bafeman,  79111.  531.  v.    Watt,   69  111.   655;  Haggard  v. 

•^  Williams  v.  Reynolds,  86  111.  263.      Smith,  71  111.  226. 
^ Henry  v.  31.  Co.,  83  III.  461;  May-  ^Rev.  Stat.  (1893),  1075;  Rev.  Stat. 

berry  v.  Van  Horn,  83  111.  289;  Allen      (1895),  1159;  2  Starr  &  Curtis  1789. 

^Bailey  v.  Bank,  127  111.  333. 


DEFENSES    TO   THE    ACTION   OF    ASSUMPSIT.  151 

No.  S4.    Notice  of  set-off,  under  general  issue. 

In  the Court. 

CD.) 
ats.    y   Assumpsit. 

A.  B.  ) 

The  plaintiff  will  take  notice  that  on  the  trial  of  this  cause  the  defend-: 
ant  will  give  in  evidence,  and  insist,  that  the  plaintiff  was  before  and  at 
the  time  of  the  commencenaent  of  this  suit,  and  still  is,  indebted  to  the  de- 
fendant in  the  sum  of dollars,  for  {here  state  tJie  matter  or  matters  of 

set-off,  precisely  as  in  a  plea;  demands  such  as  would  be  recoverable 
under  common  counts  may  be  set  forth  as  in  such  counts,  or  as  in  the  con- 
solidated common  counts;)  and  that  on  such  trial  the  defendant  will  set 
off  and  allow  to  the  plaintiff,  against  any  demand  on  his  part  to  be  proved 
on  such  trial,  so  much  of  the  said  sum  {or  ' '  sums  ")  of  money  so  due  from 
him  to  the  defendant  as  will  be  sufficient  to  satisfy  and  discharge  such  de- 
mand. 

Dated  this day  of ,  18 — . 

E.  F.,  Attorney  for  Defendant. 

The  commencement  of  this  form  may  be  used  in  notices  of 
any  other  matters  of  defense.  In  practice,  the  notice  is  writ- 
ten by  the  pleader  at  the  foot  of  the  plea  or  pleas,  and  is  not 
served  on  the  plaintiff.  It  is  said  that  the  notice  of  set-off 
should,  in  point  of  form,  be  as  certain  as  a  declaration.'  By 
the  statute  of  Illinois,  the  defendant  is  required  to  file  with  his 
plea  or  notice  of  set-off  a  copy  of  the  instrument  or  account 
upon  which  he  intends  to  rely.  After  such  plea  or  notice  has 
been  interposed,  the  plaintiff  can  not  dismiss  his  suit  without 
the  consent  of  the  defendant,  or  leave  of  the  court.^ 

It  is  only  when  evidence  is  offered  under  a  notice,  that  the 
suiSciency  of  the  notice  can  be  tested;  and  if  the  matters 
stated  therein  do  not  constitute  a  defense  to  the  action,  the  evi- 
dence offered  will  be  excluded.  No  issue  of  law  or  fact  can  be 
formed  on  the  notice,^  It  is  strongly  intimated,  however,  in 
one  of  the  cases  noted  (29  111.  83),  that  the  sufficiency  of  the 
notice  is  a  preliminary  question,  which  ought  to  be  raised  hj 
demurrer. 

>  Bui.  Ni.  Pri.  179.  v.  Weir,  29  111.  83;  Miller  v.  Miller, 

2  Rev.  Stat.  (1893),  1075;  Rev.  Stat.  16  111.  296;  Whitehall  v.  Smith,  24 

(1895),  1159;    Starr    &  Curtis    1797;  111.  166;  Bailey  v.  Bank,  127  III.  332; 

Sav.  Inst.  V.  Brocksmith,  72  111.  370.  Tottleben  v.    Blankmship,    58    111. 

*  Burgwin  v.  Bahcock,  11  111.  28;  App.  47. 

Sherman  V.  Dutch,  16  111.  283;  Hunt 


152  DEFENSES    TO    THE    ACTION    OF   ASSUMPSIT. 

Where  a  notice  filed  with  the  general  issue  is  inconsistent, 
or  indefinite  and  uncertain,  it  may  be  stricken  from  the  files.' 
A  special  notice  should  apprise  the  plaintiff  with  reasonable 
certainty  of  the  matter  of  defense,  so  that  he  may  not  be  taken 
by  surprise  on  the  trial." 

The  general  issue,  with  notice  of  special  matter,  and  special 
pleas,  can  not  be  pleaded  at  the  same  time;  and  if  this  is  at- 
tempted to  be  done,  the  pleas  may  be  stricken  from  the  files.^ 
A  partial  failure  of  consideration  can  not  be  given  in  evidence 
under  the  general  issue  and  a  notice  of  set-off  and  of  total 
failure  of  consideration.* 

When  the  general  issue  is  pleaded,  with  a  notice  of  special 
matter  to  be  proved  on  the  trial,  if  such  special  matter  goes  to 
the  denial  of  the  execution  of  a  note  sued  on,  the  evidence 
offered  to  establish  this  fact  will  be  inadmissible.  Such  a  de- 
fense must  be  by  plea,  verified  by  oath. 

PLEA    OF    STATUTE    OF   LIMITATIONS. 

At  present  the  statute  of  Illinois  (act  of  1872)  requires  all 
suits  on  unwritten  contracts,  expressed  or  implied,  to  be  brought 
within  five  years,  and  all  suits  on  written  contracts  or  other  evi- 
dences of  debt  within  ten  years,  after  the  accruing  of  the  respect- 
ive causes  of  action.  If  any  payment  or  new  promise  is  made, 
in  writing,  on  any  such  written  contract  or  evidence  of  debt, 
within  or  after  such  period  of  ten  years,  an  action  may  be  com- 
menced thereon  at  any  time  within  ten  years  after  such  pay- 
ment or  promise.  If  the  person  entitled  to  bring  a  personal 
action  is  an  infant  or  insane,  or  imprisoned  on  a  criminal 
charge,  at  the  time  of  the  accruing  of  the  cause  of  action,  the 
suit  may  be  brought  within  two  years  after  the  disability  is 
removed.  And  if  a  person  liable  to  an  action  fraudulently 
conceals  the  cause  of  such  action  from  the  person  entitled 
thereto,  the  action  may  be  commenced  at  any  time  within  five 
years  after  the  person  entitled  to  bring  the  same  discovers 
that  he  has  such  cause  of  action.* 

^  Henrichsen  y.  3Iudd,  33  111.  476.  ^Rev.  Stat.  (1893),  941:  Rev.  Stat. 

2  Rosenburg  v.  Angell,  6  Mich.  508.  (1895),  1003;  Starr  &  Curtis  1553-3; 

3  Gilmore  v.  Noidaiid,  36  111.  300.  Knight  v.  Ry.  Co.,  141  111.  110. 
*  Swain  v.  Cawood,  3  Scam.  505. 


DEFENSES   TO    THE   ACTION    OF   ASSUMPSIT.  153 

Actions  for  a  statutory  penalty  must  be  commenced  within 
two  years  next  after  the  cause  of  action  accrued.'  Five  years 
is  the  period  of  limitation  in  Illinois,  to  an  action  on  a  judg- 
ment obtained  in  another  state.^  The  limitation  law  in  force 
when  the  cause  of  action  accrues  is  the  law  which  governs  as 
to  the  time  within  which  the  action  must  be  brought.'  The 
statute  of  limitations  must  be  specially  pleaded  to  all  actions  of 
a  personal  nature.*  The  statute  may  be  interposed  by  demur- 
rer when  the  declaration  or  petition  discloses  the  proper  facts 
to  raise  the  question.^ 

Under  the  former  law  of  Illinois,  in  respect  to  personal  ac- 
tions, if  a  person  against  whom  there  was  a  cause  of  action 
was  out  of  the  state,  either  at  the  time  of  the  accruing  of  such 
cause  or  afterward  (within  the  time  limited),  so  that  process 
could  not  be  served  on  him,  the  statute  ceased  to  run  for  the 
time  of  his  absence,  whether  he  had  removed  absolutely  or  was 
merely  absent  temporarily." 

The  present  statute  (in  force  on  and  since  July  1,  1S73)  pro- 
vides, that  "if,  when  the  cause  of  action  accrues  against  a 
person,  he  is  out  of  the  state,  the  action  may  be  commenced 
within  the  times  herein  limited  after  his  coming  into  or  re- 
turn to  the  state;  and  if,  after  the  cause  of  action  accrues,  he 
departs  from  and  resides  out  of  the  state,  the  time  of  his 
absence  is  no  part  of  the  time  limited  for  the  commencement 
of  the  action."  ' 

Municipal  corporations  are  not  within  the  operation  of  the 
statute  of  limitations,  as  respects  public  rights,  although  the 

1  Gridley  v.  Barnes,  103  111.  211.  111.  397;  R.  R,  Co.  v.  Glenney,  28  111. 

^Ambler  v.  Whi2?ple,  139  lU.  Sll;  App.  364. 

Bobbv.  Anderson,  43  111.  App.  575.  ^County  v.  Com.,  52111.  454;  Ilett 

^Beesley  v.  Spencer,  25  111.  216;  v.  Collins,  103  111.  74;  Bank  v.  Jen- 
Garrison  V.  People,  87  111.  96;  Dick-  kins,  104  111.  143;  Bell  v.  Johnson, 
insonv.  R.  R.  Co.,  77  111.  331;  Hy-  111  III.  374; PeopZe  v.  £o?/d,  132  111.  6o! 
man  v.  Bayne,  83  lU.  256;  Univer-  ^Vanlandingham  v.  Huston,  4 
sity  V.  Weer,  21  111.  App.  29;  Tilton  Gilm.  125;  Chenotv.  Lefevre,  3Gilm. 
V.  Yount,  28  111.  App.  580;  McMullen  637. 

V.  McCormick,  117  111.  83;  Wooley  ^2  Starr  &  Curtis  1556;   Rev.  Stat. 

x.Yarnell,U2m.U2;Druryv.Hen-  (1893),  941;    Rev.   Stat.   (1895),  1003; 

derson,  143  111.  315.  see  Pellsv.  Snell,  130  111.  379;  Wooley 

*  1  Chit.  PI.  420;  Burnap  v.  Wright,  v.  Yarndl,  142  111.  443. 
14  111.  303;    Gebhart  v.   Ada7ns,  23 


15J:  DEFENSES    TO   THE    ACTION   OF   ASSUMPSIT. 

rule  is  different  as  to  contracts,  or  mere  private  rights,'  Wliere 
a  statute  of  limitations  begins  to  run,  it  will  continue  to  run 
until  it  operates  as  a  complete  bar,  unless  there  is  some  saving- 
clause  or  qualification  in  the  statute  itself." 

Cases  within  the  reason,  but  not  within  the  words  of  the 
statute,  are  not  barred  by  it,^  and  it  will  not  be  applied  to  cases 
not  clearly  within  its  provisions.*  Where  separate  causes  of 
action  are  set  up  in  separate  counts  and  the  defendant  pleads 
the  statute  to  the  whole  declaration,  the  plaintiff  is  entitled  to 
recover  if  one  of  the  causes  of  action  is  not  within  the  bar.* 

The  death  of  the  debtor  Avill  not  stop  the  running  of  the 
statute."  Where  all  the  items  of  an  open  unliquidated  account 
are  on  one  side,  the  last  item  which  happens  to  be  within  six 
years,  will  liot  draw  after  it  those  that  are  of  longer  standing, 
so  as  to  protect  them  from  the  operation  of  the  statute  of  lim- 
itations.' 

When  the  statute  begins  to  run. — The  statute  of  limita- 
tions begins  to  run  when  the  cause  of  action  accrues.'  Where 
an  action  barred  by  limitation  is  revived  by  a  new  promise 
to  pay,  an  immediate  right  of  action  will  arise  therefrom,  and 
the  statute  of  limitations  in  force  at  that  date  will  apply  and  fix 
the  time  within  which  such  right  of  action  may  be  enforced 
by  the  courts."  If  a  suit  is  brought  to  recover  for  services, 
and  amounts  have  been  paid  from  time  to  time  on  the  services, 

1  Catlett  V.    People,    151    111.   16;  Thompson    v.    Reed,    48    111.    119; 

People  V.  Oran,  121  111.  650.  Eeevesv.  Herr,  59  III.  App.  81. 

'^ People  Y. White,  \l\\\.M2;  Peoria  ^ Shelburne  v.  Robinson,  3  Gilm. 

Co.r.  Gordon,  83  111.  435.  597;  Thompson  v.  Reed,  48  111.   118; 

3  Bedell  v.    Janney,   4  Gilm.  194;  Collins  v.   Thayer,  74  111.  138;  Coch- 

Dawdy    v.   Nelson,    12   Bradw.   74;  ranv.  Oliver,  1  Bradw.  IIQ;  Daicdy 

McClintic   v.  Layman,    12    Bradw.  v.  Nelso7i,   12   Brad,    74;    Dugan  v. 

356_  Follett,  100  111.  581;  Selleek  v.  Selleck 

*  Hazell  V.  Shelby,  11  111.  9.  107  111.  389;    McConnell  v.  Kebbe,  33 

nChit.  PI.  546;  Perkins  v.   Bur-  HI.   175;    M.  D.   Co.  v.  Topping,  89 

6a.?ifc.  2 Mass.  %l;Penna  Co.  v.  Sloan,  HI.  65;    Schillo  v.   McEicen,  90  111. 

125  111.  72,  ''"'';  Emmons   v.   Moore,   85  111.  304; 

^ Baker  v.  Broion,  18  111.  91;    Peo-  Dickerson  v,  Merriman,  100  111,  342: 

pie  V.  '[Miite,  11  111.  350;  Shelburn  v.  Ry.    Co.   v,  Jenkins,    103  111.    588; 

Robinson,   3  Gilm.  598;  Bonney  v.  Rentchler  v.  Kunkelman,  17  Bradw. 

Stoughton,  122  III.  536;  see  Pinkney  343;  Sttppiger  v.  Gniaz,  137  111.  216. 

V.  Pmfcne?/,  61  111.  App.  525.  ^  Drnry  v.    Henderson,    143     111. 

'  Kimball  v,  Broivn,  7  Wend.  322;  315. 


DEFENSES   TO   THE    ACTION    OF  ASSUMPSIT.  155 

the  statute  does  not  begin  to  run  until  the  date  of  the  last  pay- 
ment/ 

When  one  continuous  piece  of  work,  consisting  of  a  number 
of  parts  or  items,  is  to  be  performed,  the  statute  of  limitations 
does  not  begin  to  run  upon  the  completion  of  each  separate  part 
or  item  but  upon  the  completion  of  the  whole.  If  the  several 
items  are  merely  parts  of  one  transaction,  the  statute  begins 
to  run  from  the  date  of  the  last  item.^  The  statute  bemns  to 
run  against  an  assessment  by  a  corporation  upon  its  stock- 
holders at  the  date  of  the  assessment,^  In  a  case  where  some 
act  is  to  be  done,  or  condition  precedent  to  be  performed,  by  a 
party,  to  entitle  him  to  his  right  to  sue,  and  no  definite  time 
is  fixed  at  which  the  act  is  to  be  done  or  condition  performed, 
he  must  exercise  a  reasonable  diligence  to  do  the  one  or  per- 
form the  other,  or  he  w^ill  be  barred  by  the  statute  of  limita- 
tions.* To  support  a  plea  of  the  statute  of  limitations  to  a  new^ 
count,  where  such  plea  will  not  lie  to  the  original  declaration, 
it  must  appear  that  the  new  count  introduces  into  the  case  a 
cause  of  action  which  is  substantially  and  essentially  new.  If 
a  new^  count  merely  tells  the  same  story  in  a  different  w^ay,  or 
is  a  mere  amplification  or  more  specific  statement  of  the  cause 
of  action  already  declared  upon,  the  plea  can  not  be  sustained.^ 
Where  no  new  cause  of  action  is  introduced,  courts  will  allow 
amendments  liberally  for  the  purpose  of  avoiding  the  running 
of  the  statute.*^ 

New  promise. — The  promise  to  pay  a  debt  barred  by  the 
statute  only  removes  the  bar,  and  leaves  the  case  to  be  proved 
as  if  no  statute  had  been  pleaded,'  An  acknowledgment  that 
the  original  debt  once  existed  is  not  sufficient  to  take  the  case 

^Miller  v.  Cinnamon,  61  111.  App.  Phelps,  4  Bradw.  238;  Fish  v.  Far- 

429,  well,  54  111.  App.   457;  R.  R.  Co.  v. 

2  aBrien  v.  Sexton,  140  111.  517,  Jones,  149  111.  361;  Blanchard  v.  Ry. 

^Tel.  Co.  V,  Barker,  56  111.  App,  Co.,  126  III.  416;  Ry.  Co.  v.Henne- 

402.  berry,  153  111.  354. 

*  Shelburne  v.  Robinson,  3  Gilm.  *  McDowell  v.   Toicns,  90  111,  359; 

597,  Coal  Co.  v.  Taylor,  81  111.  590;  Ins. 

5  R.  R.  Co.  V.  Trayes,  17  Bradw.  Co.  v.  Mueller,  77  111.  22;  Challenor 

136;  Mill  Co.  v,  Monka.  107  111.  340;  v,  Niles,  78  111.  78, 

Pheljis  V.  R.  R.Co.,  94  111.  548;  I.  C.  '  Kimmell  v.  Schicartz,  Breese  278; 

Co.  V,  Cobb,  64  111.  128;  R.  R.  Co.  v.  Teessen  v.  Camblin,  1  Bradw,  424. 


156  DEFENSES    TO   THE    ACTION   OF   ASSUMPSIT. 

out  of  the  statute,  but  there  must  be  an  unqualified  admission 
that  the  debt  is  due  and  unpaid,'  and  an  intention  evinced  to 
pay  it.^  To  take  the  case  out  of  the  statute  of  limitations  the 
new  promise  must  be  made  to  the  party  seeking  its  benefit,  or 
to  some  one  authorized  to  act  for  him.  A  promise  to  a  stranger 
is  insufficient.'  If  a  maker  of  a  note  maices  a  partial  payment 
thereon,  the  law  implies  a  new  promise  to  pay  the  balance. 
But  this  new  promise  can  only  be  implied  where  the  maker 
designedly  makes  a  payment  on  the  note.  If  the  holder  in- 
dorses a  credit  without  authority  from  the  debtor,  it  will  not 
impose  upon  him  the  obligation  of  a  new  promise.* 

There  must  be  an  unqualified  acknowledgment  of  the  debt; 
a  promise  to  pay  on  a  contingency  which  has  not  happened  is 
not  sufficient."  A  promise  by  the  defendant  that  he  will  set- 
tle with  the  plaintiff  as  soon  as  he  gets  the  money  for  certain 
work,  is  a  conditional  promise,  and  can  neither  serve  for  the 
foundation  of  an  action  nor  be  taken  as  a  waiver  of  the  stat- 
ute of  limitations,  without  at  least  proving  that  the  defendant 
received  the  money  for  the  work.' 

In  order  to  revive  a  debt  barred  by  the  statute  of  limita- 
tions, where  the  cause  of  action  has  accrued  after  the  act  of 
April  4,  1872,  took  effect,  the  new  promise  must  be  in  writ- 
ing.'     The  requirement  that  the  payment  or  new  promise 

^Wetzell  V.  Bussard,  11  Wheat.  ^Loioery  v.  Gear,  22  III  S82;  Pease 

309;  Bell  v.  Morrisoyi,  1  Peters  360;  v.    Catlin,   1   Bradw.   88;    Ditch  v. 

Ayers  y.  Richards,  \2\\\.\i&;  Bangs  Vollhardt,  83  111,  134;    Connelly  \. 

V.   Hall,   2  Pick.   368;  Waldron  v.  Pierson,  4  Gilm.  108;   Simmons  v. 

Alexander,  136  111.  550.  Aelson,  48  111.  App.  520. 

^Qiiayle    v.    Guild,    91    111.    878;  ^  Dickerson  \.  Sutton,  10  111.  40S; 

Keener  v.  Cridl,  19  111.  189;  Norton  Cagivin  v.  Ball,  2  Bradw.  70;  Hay- 

V.    Colby,   52   111.    198;    Wooters  v.  tcard  v.  Gunn,  4  Bradw.  161;  Kal- 

King,  54  111.  343;  Wachter  v.  Albee,  lenbach  v.  Dickenson,  100  111.  427; 

80  111.  47;  Mandel  v.  Gundershimer,  Bassett    v.    Noble,    15  Bradw.   360; 

61  111.  App.  333.  Horner  v.  Starkey,  27  111.   13:  Sen- 

3  Keener  v.  Cndl,  19  111.  189;  Tees-  nott  v.  Horner,  30  111.  429;  Patter- 
sen  V,  Camblin,  1  Bradw.  424;  son  v.  Collar,  31  111.  App.  348;  Mur- 
Wachter  v.  Albee,  80  111.  47;  McGrew  phy  v,  Holimy,  25  111.  App.  554. 
V.  Forsythe,  80  111.  596;  Carroll  v.  ^  Mtdlet  v.  Strumph,  27  111.  107; 
Forsythe,  69  111.  127;  Bloomfield  v.  Murphy  v.  Hohcay,  25  111.  App.  554. 
Bloomfield,  7  Bradw.  261;  Katz  v.  ''Robinson  v.  Brisco,  55  111.  App. 
Moessinger,  7  Bradw,  536;  Patterson  131;  Ziegler  v.  Tennery,  23  111.  App. 
V,  Collar,  31  111.  App,  848,  133;    Baldwin  v,   Baldwin,   26   111, 


DEFENSES   TO   THE    ACTION    OF    ASSUMPSIT.  157 

shall  be  "  in  writing"  does  not  apply  so  far  as  to  require  the 
evidence  of  it  to  be  so  preserved,  and  the  words  "  in  writing  " 
have  reference  alone  to  the  specified  new  promise  to  pay.^  An 
admission  of  the  indebtedness  will  take  the  case  out  of  the 
statute,  although  the  amount  of  the  indebtedness  is  not  fixed.^ 

A  verbal  promise  to  pay  a  note  previously  given  has  the 
same  effect,  as  regards  the  statute  of  limitation,  as  a  re-delivery 
of  the  note,  and  the  note  is  good  for  the  same  period  that  it 
would  be  if  it  were  dated  on  the  day  of  the  new  promise.'^ 
One  joint  debtor  can  not,  by  a  partial  payment,  made  without 
knowledge,  assent,  or  subsequent  ratification  by  the  other, 
bind  the  latter  so  as  to  authorize  the  inference  of  a  new  prom- 
ise on  his  part,  and  avoid  the  effect  of  the  statute  of  limita- 
tions/ To  take  a  case  out  of  the  statute  by  a  partial  payment 
it  must  appear  that  the  payment  was  made  on  account  of  the 
debt  for  which  the  action  is  brought;  ^  and  there  must  be  proof 
that  such  payment  was  made  by  the  defendant.^  The  acknowl- 
edgment of  a  debt,  in  order  to  take  it  out  of  the  statute,  must 
clearly  refer  to  the  very  debt  in  question  between  the  parties/ 

On  foreclosure  of  mortgage.— Section  11  and  section  16  of 
the  limitation  law  are  to  be  construed  together.  The  effect 
of  the  former  section,  when  so  construed,  is  the  same  as  the 
law  implied  before  its  passage,  that  is,  that  the  period  of  lim- 
itation which  bars  the  debt  bars  also  the  mortgage  or  deed  of 
trust  securing  the  same.* 

No.  85.    Plea  of  the  statute  of  limitations. 

{If  pleaded  as  a  first  plea,  commence  as  indicated  in  the  observation  under 
this  form;  if  as  a  second  or  subsequent  plea,  commence  as  follows:)  And  for  a 
further  plea  in  this  behalf,  the  defendant  says  that  the  plaintiff  ought  not 

App.  177;  Honn  v.  Pinnell,  61  111.  ^  Lowery  x.  Gear,  32  111.  382;  City 

App.    187;  Davis  v.  Mann,   43  111.  v.  Hunter,  10  Bradw.  230. 

App.  301.-  ^Loivery  v.  Gear,  32  111.  382;  Kal- 

^Bou-les  V.  Keator,  47  111.  App.  98.  lenbach  v.  Dickinso7i,  100  111.427. 

"  Schmidt  v.  Pfau,  114  111.  495;  see  '  Clarke    v.    Dutcher,     9   Cowen, 

Neustacher  v.  Schmidt,  25  111.  App.  674. 

626.  ^ Schifferstein    v.  Allison,  123  111. 

^Sennottv.  Horner,  50  m.  429.  662;  Waughop   v.   Barflett,   61    111. 

* Boynton  V.  S2:>afford,  Ql  III.  App.  App.  252;    Harris  v.  Hills,  28  III. 

384;  Kallenbach  v.  Dickenson,   100  44;  Gilbert  v.  Guptill,  34  111.  112. 
111.  427. 


158  DEFENSES    TO    THE    ACTION    OF    ASSUMPSIT. 

to  have  his  aforesaid  action  a^i^ain^t  liiiii,  the  defendant,  because  he  says 
(*)  that  the  several  supposed  causes  of  action  in  the  said  dechiration  men- 
tioned did  not,  nor  did  any  or  either  of  them,  accrue  to  the  plaintiff  at  any 
time  within  five  years  next  bMfore  the  commencement  of  tliis  suit,  in 
nianner  and  form  as  the  plaintiff  has  abo.'e  complained  against  him,  the 
defendant:  And  this  the  defendant  is  ready  to  verify;  wherefore  he  prays 
judgment  if  the  plaintiff  ought  to  have  his  aforesaid  judgment  against  him, 
etc. 

K  first  plea,  when  special^  commences  (after  the  title  of  the 
court,  etc.)  in  this  manner: 

"And  the  defendant,  by  G.  H.,  his  attorney,  comes  and  defends  the 
wrong  and  injury,  when,  etc.,  and  says  that  the  plaintiff  ought  not  to  have 
his  aforesaid  action,"  etc. 

The  above  form  of  the  plea  of  the  statute  of  limitations 
{cictio  non  accrevit,  etc.,)  is  necessary  whenever  it  is  desired  to 
plead  that  defense  to  a  declaration  containing  a  count  on  a 
cause  of  action  Avhich  did  not  accrue  until  after  the  making  of 
the  contract — as  on  a  promissory  note,  for  example;  and  it 
will  suffice  in  all  cases,  though  in  indehitatiis  assumpsit,  and 
in  other  instances  where  the  statute  begins  to  run  from  the 
time  of  the  promise,  it  is  proper  to  plead  that  the  defendant 
did  not  at  any  time  within  five  years,  etc.,  promise,  etc.  {non 
assumpsit,  infra,  etc.y  The  italicized  words,  to  the  ■plaintiff, 
are  to  be  omitted  in  actions  at  the  suit  of  executors,  etc. 

No.  86.    Replication  to  No.  S5 — Causes  of  action  did  accrue  within  five  years. 

(Similiter  to  general  i^^ne,  if  pleaded,  as  ante,  No.  10;  if  not,  entitle  first 
replication  as  in  that  form.)  And  the  plaintiff,  as  to  the  plea  of  the  defend- 
ant by  him  secondly  auove  pleaded,  says  that  he,  the  plaintiff,  by  reason  of 
anything  in  that  plea  alleged,  ought  not  to  be  barred  from  having  his  afore- 
said action,  because  he  says  (*)  that  the  said  several  causes  of  action,  and 
each  and  every  of  them,  did  accrue  to  him  within  five  years  next  before  the 
commencement  of  this  suit,  in  manner  and  form  as  he  has  above  complained 
against  the  defendant :  And  this  the  plaintiff  prays  may  be  inquired  of  by 
the  country,  etc. 

Under  this  replication  the  plaintiff  may  not  only  show  that 
the  cause  of  action  did  accrue  within  five  years,  but  may  prove 
a  promise  or  acknowledgment  made  after  the  accruing  of  the 
orio-inal  cause  of  action,  and  within  the  time  limited  by  the 

1  3  Chit.  PL  940,  941,  notes;  Leaper  v.  Tatton,  16  East  421. 


DEFENSES    TO    THE   ACTION    OF   ASSUMPSIT.  159 

statute;'  though  it  is  said  a  special  replication  is  in  general 
advisable,  because  it  reduces  the  proof  to  be  adduced  by  the 
plaintiff  on  the  trial.'' 

No.  8S.    Replication  to  No.  85.    Defendant  was  out  of  the  state  when 
causes  of  action  accrued. 

(As  in  No.  86,  to  the  asteHslc,  and  then  proceed :)  that  the  defendant,  at 
the  time  when  the  said  several  causes  of  action  accrued  to  the  plaintiff,  was 
out  of  this  state,  to  wit,  at ,  in ;  and  that  he,  the  defendant,  after- 
ward, to  wit,  on  etc.,  returned  to  this  state;  which  said  return  of  the  de- 
fendant was  his  first  return  to  this  state  after  the  accruing  of  the  several 
causes  of  action  aforesaid:  And  the  plaintiff  further  says,  that  he  com- 
menced his  said  action  within  five  years  next  after  the  defendant's  first  re- 
turn as  aforesaid  to  this  state  after  the  accruing  of  the  said  several  causes  of 
action.  And  this  the  plaintiff  is  ready  to  verify;  wherefore  he  prays  judg- 
ments, and  his  damages,  etc.,  to  be  adjudged,  to  him,  etc. 

The  plaintiff  may  (in  Illinois)  also  reply  that  after  the  cause 
of  action  accrued,  the  defendant  departed  from  and  resided 
out  of  the  state,  etc' 

No.  89.    Rejoinder  to  No.  88,  denying  that  action  was  commenced  uiithin 
five  years  after  defendaiifs  return,  etc. 

(Similiter  as  ante.  No.  87,  to  any  replication  or  replications  there  may  he, 
concluding  to  the  country.  If  none,  entitle  first  rejoinder  as  in  that  form.) 
And  the  defendant,  as  to  the  said  replication  of  the  plaintiff  to  the  said 
second  plea  of  the  defendant,  says  that  the  plaintiff  ought  not,  by  reason  of 
anything  in  that  replication  alleged,  to  have  his  aforesaid  action  against 
him,  the  defendant,  because  he  says  (*)  that  the  plaintiff  did  not  commence 
his  said  action  within  five  years  next  after  the  defendant's  first  return  to 
this  state  after  the  accruing  of  the  said  several  supposed  causes  of  action, 
in  manner  and  form  as  the  plaintiff  has  above  in  that  replication  alleged: 
And  of  this  the  defendant  puts  himself  upon  the  country,  etc. 

The  principal  Illinois  cases,  not  already  cited,  relating  to 
limitations  of  personal  actions,  are  noted  below.* 

'  1  Chit.  PL  502;  2  Swan's  PI.  699,  c.  Hedges   v,   Madison,   1   Gilm.   306; 

.  2 1  Chit,  PI.  503.  RhineJiardt  v.  Schuyler,  2  Gilm.  473; 

»Rev.  Stat.    (1893),  941;  Rev.  Stat.  Rectory.  Rector,  d Gilm.  105;  Thomp- 

(1895),  1003;  2  Starr  &  Curtis  1556.  son  v.  Alexander,  11  111.  54;  Burnap 

*  Naughty.  O'Neal,  BreeseSGiBanh  y.  Marsh,   13  111.   535;   Tnistees  v. 

y.Brown,lScam.lOQ;  Tufts  y.  Rice,  Chamherlain,  14  111.  495;  Ryan   v. 

Breese  64;  Wliite  v.  Hight,  1  Scam.  Jones,  15  111.  1;  Watt  v.  Kirhy,  15  111. 

204;  Watkins  v.  White,  3  Scam.  549;  200;  Dunlap  v.  Buckingham,  16  111. 


160 


DEFENSES   TO    THE   ACTION   OF   ASSUMPSIT. 


PLEA  OF   INFANCY. 


An  infant  becomes  of  full  age  on  the  day  preceding  the 
twenty-first  anniversary  of  his  birth/  and  females  are  at  their 
majority  at  eighteen,  in  Illinois."  The  implied  contracts  of  an 
infant  for  necessaries  are  binding  upon  him.^  What  are  nec- 
essaries is  determined  by  the  court;  whether  furnished,  and 
their  value,  by  the  jury."  An  infant  is  not  liable  for  repairs  on 
his  dwelling  house,  although  he  made  a  contract  therefor,  and 
such  repairs  were  necessary  to  prevent  an  immediate  and  seri- 
ous injury  to  the  house." 

The  note  of  an  infant  is  not  void,  but  voidable,  and  a  prom- 


109;  King  v.  Hamilton,  16  111.  190; 
Walker  V.  Goodrich,  16111.  341;  Bour- 
land  V.  Peoria,  16  111.  539;  Baker  v. 
Broivn,  18  111.  91;  Stevenson  v.  West- 
fall,  18  111.  209;  Van  Alstine  v.  Lem. 
ens,  19  111.  394;  Campbell  v.  Vinning, 
23  111.  525;  Campbell  y.  Harris,  30  111. 
395;  Baker  v.  Backus,  32  111.  79;  Hitt 
V.  Sharer,  34  111.  9;  Avery  v.  Babcock, 
35  111.  175;  Ballengerv.  McKee,  36  111. 
255;  Wells  v.  3Iiller,  45  111.  33;  Milner 
V.  Briggs,  45  111.  349;  3Iason  v.  Tif- 
fany, 45  111.  392;  Lijon  v.  Bobbins,  46 
III.  276;  Simmons  v.  Butters,  48  111. 
226;  Zacharie  v.  Godfrey,  50  111.  186; 
Cutter  V.  Jones,  52  111.  84;  Henry  Co. 
V.  Drain  Co.,  52  111.  299;  Roberts  v. 
Fleming,  53  111.  196;  Dolton  v.  Erb, 
53  111.  289;  Sale  v.  Fike,  54  111.  292; 
Governor  v.  Woodworth,  63  111.  254; 
Freeman  v.  Freeman,  65  111.  106; 
Hallesy  v.  Jackson,  66  111.  139;  Mc- 
intosh V.  Saunders,  68  111.  128;  Gal- 
braith  v.  Littiech,  73  111.  209;  Lane  v. 
Peojile,  76  111.  300;  Logan  Co.  v.  City, 
81  III.  156;  Leroyy.  City,  81  111.  114; 
Haytvard  v.  Gtinn,  82  111.  385;  Keil 
V.  Healey,  84  111.  104;  Emmons  v. 
Iloore,  85  111.  304;  Foster  v.  Letz,  86 
111.  412;  Emory  v.  Keighan,  88  111. 
482;  Schillo  v.  McEwen,  90  111.  77; 
James  v.  R.  R.  Co.,  91  111.554;  Ram- 
sey V.  Clinton,  92  111.  225;  Bemis  v. 


Stanley,  93  111.  230;  Lambkin  v.  Peo- 
ple, 94  111.  501;  Holmes  v.  R.  R.  Co., 
94  111.  439;  Piatt  Co.  v.  Goodell,  97 
111.  84;  Walden  v.  Karr,  88  111.  49; 
Dodge  v.  CoZe,  97  111.  338;  Wernse  v. 
ifaZZ,  101  111.  423;  Bonham  v.  PeqpZe, 
102  111.  434;  Lee  v.  Mound,  118  111. 
312;  FjgfMS  v.  GBannon,  118  111.  339; 
Bartelott  v.  BaJifc,  119  111.  259;  Steere 
V.  Brownell,  124  111.  27;  Whittaker  v. 
Crow,  132111.627;  IFoodv.  Williams, 
142  111.  209;  Kreiz  v.  Behrensmeyer, 
149  111.  496;  Ba?ifc  v.  Coleman,  11 
Bradw.  508;  i2.  ii.  Co.  v.  I^^Zcoa;,  12 
Bradw.  43;  Boides  v.  Keator,  47  111. 
App.  98;  ifi'ZZ  V.  Sommer,  55  111.  App. 
345;  Grant  v.  Odiorne,  43  111.  App. 
402;  Parks  v.  Cadivallader,  53  111. 
App.  236;  Green  v.Baird,  53  111.  App. 
211;  same  case,  61  lU.  App.  72; 
Trustees  v.  ^r?ioZcZ,  58  111.  App.  103. 

1  ^FeZZs  V.  PFeZZs.  6  Ind.  447. 

"^Kester  v.  Stark,  19  111.  328;  ^Sfe- 
venson  v.  Westfall,  18  111.  209. 

^CoZev.Penjioyer,  14111.158;  2Md. 
Ch.  Decis.  81;  Squier  v.  Hydiff,  9 
Mich.  274;  iocfce  v.  ^miZ/i.  41  N.  H. 
346. 

*  Henderson  v.  Fox,  5  Ind.  489. 

^Tupper  V.  Cad  well,  12  Metcalf 
559;  see  McCarty  v.  Carter.  49  111. 
53. 


DEFENSES   TO   THE    ACTION    OF   ASSUMPSIT.  161 

ise  to  pay,  made  by  him  after  he  becomes  of  age,  renders  the 
note  valid.  If  the  promise  is  conditional,  performance  or  the 
happening  of  the  condition  must  be  affirmatively  shown,  to 
sustain  an  action.  A  promise  to  pay  as  soon  as  he  could,  is 
conditional,  and  unavailing  without  proof  of  ability/  A  nego- 
tiable note  given  by  an  infant,  even  for  necessaries,  is  voidable.^ 

Where  a  minor  contracted  to  work  nine  months,  but  only 
worked  one  month  and  a  half,  and  then  ceased,  it  was  held 
that  he  was  not  bound  by  his  contract,  and  could  recover 
from  his  employer  the  value  of  the  services  rendered.'*  An 
infant  can  not  bind  himself  by  bond;  and  if  he  has  made  a 
bond  during  infancy,  and  after  he  comes  of  age  makes  a  parol 
promise  to  pay  a  smaller  sum,  in  lieu  of  the  amount  of  the 
bond,  the  suit  should  be  brought  on  the  parol  promise.* 

To  make  a  voidable  contract  with  an  infant  binding  upon 
him,  he  must  expressly  ratify  it  after  he  attains  full  age;  and 
a  ratification  will  not  be  inferred  from  a  mere  acknowledo-- 
ment  of  the  debt.  A  promise  to  pay,  or  a  direct  confirmation 
after  the  person  has  attained  his  full  age,  is  evidence  of  such 
ratification; "  and  it  must  be  made  with  a  full  knowledge  that 
the  party  is  not  liable  by  law.°  It  must  be  voluntary,  and  not 
under  terror  of  an  arrest,  and  must  be  made  before  the  com- 
mencement of  the  action.'' 

Where  an  infant,  upon  being  applied  to  for  payment  of  a 
note  made  by  him  during  his  infancy,  acknowledged  that  the 
money  was  due,  and  promised  that  on  his  return  to  his  home 
he  would  endeavor  to  procure  it,  and  send  it  to  his  creditor, 
it  Avas  held  that  there  was  a  sufficient  ratification  of  the  original 
promise.' 

'  Everson  v.  Carpenter,  17  Wend.  Smith  v.  Mayo,  9  Mass.  64;    Martin 

419;  Goodsell  v.  Myers,  3  Wend.  479;  v.  Mayo,  10  Mass.   140;   Whitney  v. 

Reynolds  v.  McCurry,  100  111.  356.  Dutch,  14  Mass.457;  Ford  v.  Phillips, 

^Swasey  v.  Adm.,   10  Johns.  33;  1   Pick.  202;    Thompson   v.  Lay,  4 

Wieland  v.  Kobick,  110  III.  16;  Nor-  Pick.  48. 

ton  V.  Steward,  5  Bradw.  533.  ^  Smith  v.  Mayo,  9  Mass.  62;  Ford  v. 

^Ray  V.  Haines,  52  111.   485.  Philli2)s,  1  Pick.  202;  see  Bennett  v. 

*  Bliss  V.  Ferryman,  1  Scam.  484;  McLaughlin,  13  Bradw.  349. 

see  1  Parsons  Cont.    323,   325,   326;  '  Smith  v.  Mayo,  9  Mass.  62;  Ford 

Field  V.  Herrick,  101  111,  110.  v.  Phillips,  1  Pick.  202. 

'  Conkling  v.  Ogburn,   7  Ind.  553;  *  Whitney  v.  Dutch,  14  Mass.  457. 
11 


1G2  DEFENSES    TO    THE    ACTION    OF    ASSUMPSIT. 

The  ratification  of  an  infant's  contract  should  be  a  promise 
to  a  party  in  interest,  or  his  agent;  and  such  ratification  sliould 
be  equivalent  to  a  new  contract.'  If  after  becoming  of  age 
he  does  any  act  clearly  showing  an  intention  to  affirm  a  con- 
tract, he  can  not  afterward  repudiate  it,^ 

Contracts  made  by  an  infant  are  not  void,  but  voidable  only, 
and  by  the  infant  alone.^  It  is  a  personal  privilege,  of  which 
none  can  take  advantage  but  the  infant.*  Infancy  in  legal 
proceedings  will  not,  as  a  general  rule,  be  presumed.  It  must 
be  pleaded  and  proved,  as  the  case  may  require.^  But  infancy 
maybe  given  in  evidence  under  the  general  issue,  in  assumpsit, 
though  it  is  in  general  better  to  plead  it.®  AVhen  infancy  is 
alleged,  the  burden  of  proof  devolves  upon  him  who  alleges  it.' 
But  if  a  new  promise  is  replied,  the  infancy  is  admitted.* 

Where  one  of  two  defendants  pleads  his  infancy,  it  has  been 
held  that  the  plaintiff  may  enter  a  nolle  j^f'osequi  as  to  him, 
and  proceed  to  judgment  against  the  other  defendant;  or  the 
jury  mav  find  a  verdict  for  the  infant  defendant,  and  a  verdict 
for  the  plaintiff  against  the  other  defendant.®  This  may  doubt- 
less be  done  under  the  practice  act  of  Illinois,  but  the  contrary 
seems  to  have  been  the  rule  at  common  law.'" 

A  judgment  against  an  infant,  without  first  appointing  a 
guardian  ad  litem,  is  erroneous."  Such  a  judgment  may  be 
set  aside  in  the  court  where  it  is  rendered,  on  motion;  and 
when  the  judgment  has  been  set  aside,  the  defendant  may 
make  any  defense  to  which  he  may  be  entitled.'^  An  exchange 
of  property  made  by  a  minor  is  voidable.'*     See  further,  as  to 

^  Goodsellv.  Myers,  3  Wend.  479;  ^ Hartness  v.  Thompson,  5  Johns. 

Mayer  V.  McLiire,  36  Miss.  389.  160;  Woodward  v.  Newhall,  1  Pick. 

■^Curryy.  Ploiv  Co.,  55lU.App.  82.  500:  Mies  v.  Drake,    17  Pick.   516: 

^Slocum  V.  Hooker,  13  Barb.  536.  Cuts  v.  Gordon,  13  Maine  474;  Jud- 

*2  Kent  Com.  249;  2  Parsons  on  son\.  Gibbons,  5  Wend.  228. 

Con.  275;  Van  Bramerv.  Cooper,  2  ^'^IChit.VX. '8a;  Chandler  v.  Parker, 

Jolms.  279;  Jackson  v.  Todd,  6  Johns.  3  Esp.  76;  Tidd's  Pr.,  7th  Ed. ,  710. 

257;  Campbell  v.  Wilson,  23  Texas  ^^ McDaniel  v.  Correll,\Q  111.  226; 

253.  Crocker  v.  Smith,   10   Bradw.    376; 

5  Pitcher  v.  Laycock,  7  Ind.  398.  Lloyd  v.  Kirkwood.  112  111.  329;  Mil- 

6  1  Chit.  PI.  417,  421;  see  Curry  v.  lard  v.  Marmon,  116  111.  649. 
PZou' Co.,  55  111.  App.  82.  ^'' Peak   v.    Shasted,    21    111.    137; 

'  Greenleaf  Ev.,  §  81.  Lemon  v.  Stveeney,  6  Bradw.  507. 

8  Goodsell  V.  Myers,  3  Wend.  479.  '^  Williams  v.  Brown,  34  Me.  594. 


DEFENSES    TO    THE    ACTION    OF    ASSUMPSIT. 


163 


the  law  in  respect  to  infancy,  in  Illinois,  the  additional  cases 
given  in  the  note/ 

No.  90.     Plea  of  infancy. 

(As  in  No.  S5,  ante,  to  the  asterisk,  and  then  proceed:)  that  he,  the  defend- 
ant, at  the  time  of  the  making  the  several  supposed  promises  in  the  said 
declaration  mentioned,  was  an  infant  within  the  age  of  twenty-one  years, 

to  wit,  of  the  age  of years  :  And  this  he  is  ready  to  verify;  wherefore  he 

prays  judgment,  etc.  {concluding  as  in  jVo.  85). 

If  the  defendant  is  still  an  infant,  the  commencement  of  the 
first  plea  should  be  (after  entitling  it)  as  follows  : 

"And  the  said  C.  D.,  by  G.  H.,  admitted  by  the  court  here  as  guardian 
of  the  said  C.  D.,  to  defend  for  him,  the  said  C.  D.,  who  is  an  infant  under 
the  age  of  twenty -one  years,  comes,  etc.,  and  says,"  etc. 

No.  91.    Replication  to  No.  90,  denying  infancy. 

{As  in  No.  86,  ante,  to  the  asterisk,  and  then  proceed :)  that  the  defendant, 
at  the  time  of  making  of  the  said  several  promises,  was  of  the  full  age  of 
twenty-one  years,  and  not  within  the  age  of  twenty-one  years,  as  the  de- 
fendant has  above  in  that  plea  alleged  :  And  this  the  plaintiff  prays  may  be 
inquired  of  by  the  country,  etc. 


^French  v.  Creath,  Breese,  31; 
Greer  v.  Wlieeler,  1  Scam.  554; 
Thornton  v.  Vaughn,  2  Scam.  218; 
McClay  v.  Norris,  4  Gilm .  370;  Smith 
v.  Sackett,  5  Gilm.  534;  Sconce  v. 
y/hitney,  12111. 150;  Hitt  v.  Ormsb7j, 
12  111.  166;  Enos  v.  Capps,  12  111.  255; 
Hamilton  v.  Gilman,  12  111.  266; 
Dufield  V.  Cross,  12  111.  397;  Holmes 
V.  Field,  12  111.  422;  Walker  v.  Ellis, 
12  111.  470;  Enos  v.  Capp.s,  15  III. 
277;  Tiittle  v.  Garrett,  16  III.  354; 
Cost  V.  Rose,  17  111.  276;  Masterson 
V.  Wim^old,  18  111.  48;  Sinklear  v. 
Emert,  18  111.  64;  Carr  v.  Fielden, 
18  111.  77;  Peak  v.  Pricer,  21  111.  164; 
Chaffinv.  Kimball,  2S  111^6 ;  Blank- 
enship  v.  Stout,  25  111.  132;  Tibbs 
V.  Alleti,  27  111.  119;  Reddick  v. 
Ba7ik,  27  111.  148;  Cox  v.  Reed,  27 
111.  434;  Btirger  v.  Potter,  32  111.  66; 
Waugh  v.  Robbins,  33  111.  182;  Black 
V.   Hills,  36  111.   377;  Davidson  v. 


Young,  38  111.  145;  Kuchenheiser  v. 
Beckert,  41  111.  172;  McDermid  v, 
Russell,  41  111.  490;  Caldivell  v.  Sher- 
man, 45  111.  338;  Quigley  v.  Roberts, 
44  III.  503;  Preston  v.  Hodgen,  50 
111.  56;  Kane  Co.  v.  Herrington,  50 
III.  232;  Barnes  v.  Hazelton,  50  111. 
429;  Hess  v.  Voss,  52  111.  473;  Hoyt 
V.  Swar,  53  111.  134;  Greenman  v. 
Harvey,  53 111.386;  F/sc/ier  v.  Fischer, 
54  111.  231;  Hickenbotham  v.  Black- 
ledge,  54  III.  316:  Matthews  v.  Cowan, 
59  111.  341;  Thomas  V.  Adams,  59  III. 
223;  Scott  v.  White,  71  111.  288;  Reed 
V.  Degener,  82  111.  508;  Patterson  v. 
Pidlman,  104  111.  80:  Beederman  v. 
O'Conner,  117  111.  496;  Allen  v. 
Jacobs,  14  Bradw.  277;  Ashlock  v. 
Vivell,  29  111.  App.  393;  McLean  v. 
Tr77.so7?,  36  111.  App.  658;  3Iijer  v. 
Rehkoff,  30  111.  App.  210;  M.  Co.  v. 
Sj^ehr,  46  111.  App.  24. 


16i  DEFENSES   TO    THE    ACTION    OF    ASSUMPSIT. 

No.  02.    Replication  to  No.  90,  that  goods,  etc.,  were  necessaries. 

{As  in  No.  86,  ante,  to  the  asteinsJc,  and  then  proceed  :)  that  the  said  goods, 
chattels  and  effects  {or  whatever  the  declaration  charges),  in  the  said  decla- 
ration mentioned  to  have  been  sold  and  delivered  by  the  plaintiff  to  the  de- 
fendant, were  necessaries  suitable  to  the  condition  and  estate  of  the 
defendant :  And  this  the  plaintiff  is  ready  to  verify;  vrherefore  he  prays 
judgment,  and  his  damages,  etc. ,  to  be  adjudged  to  him,  etc. 

For  a  replication  of  this  kind  as  to  certain  counts,  with  a 
nolle  prosequi  as  to  the  rest  of  the  counts,  see  Chit.  PI.  1146, 
and  2  Swan's  Pr.  695. 

No.  93.    Rejoinder  to  the  last  replication,  denying  it. 

{As  in  No.  89,  ante,  to  the  asterisk,  and  thenprocezd:)  that  the  said  goods, 
chattels  and  effects,  in  the  said  declaration  mentioned  to  have  been  sold 
and  delivered  by  the  plaintiff  to  the  defendant,  were  not  necessaries  suit- 
able to  the  condition  and  estate  of  the  defendant,  as  the  plaintiff  has  above 
in  that  replication  alleged:  And  of  this  the  defendant  puts  himself  upon 
the  country,   etc. 

No.  94.    Replication  to  No.  90,  that  defendant  confirmed  his  promises  after 

coming  of  age. ' 

{As  in  No.  86,  ante,  to  asterisk,  and  then  proceed :)  that  the  defendant, 
after  the  making  of  the  said  several  promises,  and  before  the  commence- 
ment of  this  suit,  to  wit,  on,  etc.,  attained  his  full  age  of  twenty-one  years; 
and  that  he,  the  defendant,  after  he  had  so  attained  his  age  of  twenty-one 
years,  and  before  the  commencement  of  this  suit,  to  wit,  on,  etc. ,  in  the 
county  aforesaid,  ratified  and  confirmed  the  said  several  promises:  And 
this  the  plaintiff  is  ready  to  verify;  wherefore  he  prays  judgment,  and  hi" 
damages,  etc.,  to  be  adjudged  to  him,  etc. 

No.  95.     Rejoinder  to  the  last  replication,  denying  it. 

{As  in  No.  89,  ante,  to  the  asterisk,  and  then  proceed :)  that  he  did  not, 
after  he  attained  the  age  of  twenty -one  years,  and  before  the  commence- 
ment of  this  suit,  ratify  or  confirm  the  said  several  supposed  promises,  or 
any  or  either  of  them,  in  manner  and  form  as  the  plaintiff  has  above  in 
that  replication  alleged:  And  of  this  the  defendant  puts  himself  upon  the 
country,  etc, 

PLEA    OF   THE    STATUTE    OF    FRAUDS. 

The  defense  of  the  statute  of  frauds  must  be  set  up  and  re- 
lied upon  in  some  manner,'  but  it  may  either   be  pleaded 

'  See  another  form,  3  Chit.  PI.  *  Thornton  v.  Henry,  2  Scam.  219; 

1147.  Lear  v.  Chouteau,  23  111.   39;  War- 


DEFENSES    TO    THE    ACTION    OF   ASSUMPSIT.  1G5 

specially  or  shown  under  the  g'eneral  issue.'  Advantage  may 
be  taken  of  the  statute,  under  the  plea  of  non  assumjysit,  by 
objection  to  all  verbal  evidence  offered  in  support  of  the  dec- 
laration,' It  would  seem  to  have  been  usual  in  England  to 
prove  this  defense  under  the  general  issue,  but  the  defendant 
was  at  liberty  to  plead  it  specially/ 

On  appeal  from  a  justice's  court,  where  the  proceedings  are 
ore  tenus,  the  statute  of  frauds  is  presumed  to  have  been 
pleaded,  if  necessary  to  the  defense/  The  plea  of  the  statute 
of  frauds  is  a  personal  privilege,  like  the  plea  of  infancy,  which 
a  party  may  waive.  Another  person  can  not  plead  it  for  him, 
or  compel  him  to  plead  it.*  It  has  been  held  that  the  statute 
has  not  changed  the  mode  of  pleading,  and  hence  that  the  dec- 
laration need  not  aver  that  the  agreement  was  in  writing,  but 
the  defendant  may  rely  upon  the  statute  under  the  evidence." 

To  take  a  case  out  of  the  statute,  no  particular  form  of 
words  is  necessary  in  the  written  agreement  or  memorandum; 
anything  from  which  the  intention  may  be  gathered  is  suffi- 
cient— any  kind  of  a  writing^  from  a  solemn  deed  down  to 
mere  memoranda  in  books,  papers  or  letters.  These  must  be 
certain  enough  on  their  face,  or  by  reference,  to  show  the 
parties,  the  interest  or  property  to  be  affected,  and  the  con- 
sideration.' The  person  to  be  charged,  or  his  agent,  must 
sign  the  agreement;   and  parol  proof  of  the  agency  is  sufficient 

miv.  Dickson,  27  111.  115;  Hull  v.  M  c^it.  PI.  421. 

Peer,  27  111.  312;  Boston  v.  Nichols,  ^Comstock  v.  Ward,  22  III,   248; 

47  111.  352;  Dock  Co.  v.  Kinzie,  49  Williams^.  Corhett,2Sl\\.2Q2;  Deyo 

111,   289;  Beard  v.    Converse,  84  111,  v,  Ferris,  22  111.  App.  154. 

512;  Finucan  v.  Kendig,  109  111.  198;  ^  McCoy  v,  Williams,  1  Gilm.  584; 

Gordon  v,  Reynolds,    114  111.    118;  Dock  Co.  v.  Kinzie,  49  III.  289;  Gor- 

Bragg  v.  Olson,  128  111.   545;  Hogan  den  v.  3Iill  Co.,  20  Bradw.  559;  King 

V.  Easterday,  58  111.  App.  45;  Mc-  v,    BusJmell,    121   111.   658;  Kelly  v. 

Clure  V,  Otrich,  118  111.  320.  Kendall,  118  111.  652;  Singer  v.  Car- 

^  Buggies  v.    Gatton,  50    111.  412;  pe^^er,  125  111.  119. 

Myers  v.  Morse.  15  Johns.  425.     As  ^  Elting   v.    Vanderlyn,   4    Johns, 

to  general  issue,  see  1  Chit.   PI.  417;  237;  see  Gould's  PI.  307;  Buggies  v, 

Gould's  PL    307;  Meyers  v.  Schemp,  Gatton,  50  111.  412;  Struble  v.  Hake, 

67  111.  469;  Beard  v.  Converse.  84  111.  14  Bradw.  546;  Darst  v.  Bates,   95 

512;  Finucan  v.  Kendig,  109  111.  198.  111.  495, 

2 Gould's  PI,  307;    Beard   v.  Con-  "> McConnell  v,    Brillhart,  17  111, 

verse,  84  111,  512;  Durant  v.  Rogers,  254;    Doty   v.     Wilder,    15  111,  407; 

71  111.  121.  Far  well   v,    Lowther,  18    111,     252; 


166  DEFENSES   TO    THE   ACTION   OF   ASSUMPSIT. 

to  hold  the  party  who  has  acted  by  agent.  The  signing  may 
be  in  the  caption,  in  the  body,  or  at  the  end  of  the  instrument. 
The  agreement  must  be  signed  with  an  intent  to  enter  into  it, 
and  must  be  mutual  and  upon  good  consideration.^ 

When,  in  performance  of  a  verbal  contract  originally  within 
the  statute,  money  has  been  paid,  it  can  not  be  recovered." 

Collateral  and  original  undertakings. — If  a  promise  to 
answer  for  a  debt  incurred  for  the  benefit  of  another  is  an 
original  undertakjjig,  it  need  not  be  in  writing;  ^  but  there 
must  be  a  consideration;  and  the  plaintiff  must  declare  as 
upon  an  original  contract.* 

To  render  a  promise  to  pay  the  debt  of  another,  an  original 
undertaking,  some  benefit  must  move  between  the  promisee 
and  promisor,  and  the  original  debt  must  be  surrendered.^ 

Where,  on  a  sale  of  goods,  a  third  person  guarantees  that  the 
purchaser  will  pay  for  them,  and  thereupon  the  goods  are  de- 
livered, this  is  a  collateral  undertaking;  but  there  is  no  neces- 
sitv  for  any  distinct  consideration  passing  between  the  seller 
and  the  guarantor,  for  it  being  all  one  entire  transaction,  the 
delivery  of  the  goods  to  the  purchaser  will  support  not  only 
his  promise  but  the  promise  of  the  guarantor;  and  such  a 


Loomis  V.  Newhall,  15  Pick.  159 
see  Burke  v.  Haleij,  2  Gilm.  614 
Underwood  v.  Hossack,  38  111.  44 


111.  505;  Williams  v.  Corbett,  28  111. 
262;  Geary  v.  aNeill,  73  III.  593; 
Hartley  v.  Varner,  88  111.  561;  Res- 


Lasher  V.  Gardner,  124  111.  44.  seter  v.  Waterman,  151  111.  169. 

^  3IcConnell    v.   Brillhart,  11   111.  * Hite  v.  Wells,  11  III.  88;  Borchsen- 

854;  Johnson  v.  Dodge,   17  111.  433;  ius  v.  Canutson,  100  111.  82. 
R.  R.  Co.  V.  Bronkerhoff,  21  Wend.  *  Borchsenius  v.  Canutson,  100  111. 

139;    see    Farwell    v.    Lowther,  18  92;    Eddy    v.   Roberts,    17  111.   505; 

111.  ^52;  Sivanzy  v.  Moore,  23  111.  Wilso7iv.Bevans,5Sll\.  232;  Hartley 

63;  Omex.  Cook,  31  111.239;  Curtis  v.  Warner,  88  111.  561;  Williams  v. 

V.  Sage,  35  111.  122;  Bennett  v.  Mat-  Corbett,  28  111.  262;  Bunting  v.  Dar- 

son,  41  111.  332;  Perkins  v.  Hadsell,  byshire,  75  111.  408;    Murto  v.  Mc- 

50111.  216.  Knight,   28  111.  App.  238;    Bank   v. 

2  James  v.  Morey.  44  III.  352;  see  Waterman,  30  III.   App.  535;  same 

Blunt  V.  Tomlin,  27  111.  93;  Hull  v.  case,    134    111.    467;    Bacharach    v. 

Peer,  27111.  312;  seei^razerv.  Howe,  McCurrach,  43  111.  App.  584;   Ames 

106  111.  563.  "^'    Foster,    106    Mass.    403;    Allen 

^Sciidder  v.  Carter,  43  111.   App.  v.  Thompson,  10  N.  Y.  32;  Resseter 

252;   Bacharach  v.  McCurrach,    43  v.  WatermaJi,  151  111.  169;  Scudder 

111.  App.  584;  Eddy  v.  Roberts,  17  v.  Carter,  43  111.  App.  252. 


DEFENSES   TO   THE    ACTION    OF    ASSUMPSIT.  167 

guaranty,  in  writing,  is  valid  without  any  further  consid- 
eration." 

If  the  whole  credit  is  given  to  the  person  who  comes  in  to 
answer  for  another,  his  undertaking  is  not  collateral.  Where 
one  person  procures  services  to  be  performed  for,  or  goods  to 
be  delivered  to,  another,  he  will  be  held  liable  for  their  value;  ^ 
but  if  services  are  performed,  or  goods  sold,  on  the  credit  of 
him  who  receives  them,  a  third  person  who  verbally  agrees  to 
be  responsible  for  the  price  thereof  will  not  be  liable  in  an  ac- 
tion on  his  promise.  The  real  question  is,  in  such  case,  to 
whom  was  the  credit  given  ?  If  to  another  than  the  defend- 
ant he  is  not  liable.' 

If  goods  purchased  were  charged  to  the  person  who  bought 
them,  this  is  strong  evidence  that  the  credit  was  given  to  him, 
but  it  is  not  conclusive,  and  may  be  rebutted.* 

The  slightest  damage  to  the  plaintiff,  or  benefit  to  the  de- 
fendant, affords  a  sufficient  consideration  to  support  a  promise 
to  pay.*  Whether  an  undertaking  is  original  or  collateral  is 
to  be  determined,  not  from  the  particular  words  used,  but 
from  all  the  circumstances  of  the  transaction."  Where  the 
moving  consideration  for  the  promise  is  the  liability  of  the 
third  person,  the  promise  must  be  in  writing; '  and  a  consid- 
eration is  necessary  to  support  any  promise,  whether  in  writ- 

^  Leonardv.  Vredenhurgh,  S  Johns.  ^Cornell  v.    Electric  Co.,  61   111. 

29;  see  Eddy  v.  Roberts,  17  111.  505.  App.  325;  Webbev.  Stone  Co.,  58  III. 

^Hughes  v.   Atkins,   41    111.    213;  App.    222;  Walker  v.  Sherman,    11 

Gallupy.  Smith.  24  111.  586;  Ruggles  Met.  170. 

V.   Gatton,  50  111.  412;  see  Scott  v.  ^  Hite  v.  Wells,  17  111.  88;  Blank 

Thomas,  1  Scam.  58;  Hite  v.  Wells,  v.  Dreher,   25   111.  831;   Moshier  v. 

17  111.  88;  Onie  v.  Cook,  31  111.  239;  Aryiold,   87   111.    18;    Schoenfeld    v. 

Rabermann  v.  Wiscainp,  54  111.  179:  Brown.  78  111.  487;  Oiven  v.  Stevens, 

Coal  Co.  V.  Liddell,  69  111.  639;  Snell  78  111.  462;  7ns.  Co.  v.  Olcott,  97  III. 

Cheney,  88  111.  258;  Hartley  v.  Var-  439;   Bank    v.    Waterman,   134  111. 

ner,  88  111.  561.  461. 

i Hughes   v.  Atkins,    41  111.    213;  ''Scott  v.    Thomas,    1    Scam.    58; 

Hardman   v.    Bradley,   85    111.  562;  Hite  v.  Wells,  17  111.    88;    Eddy  v. 

Geary  V.  O'Neill,  73111.  593;  Clifford  Rogers,  17  111.  505;  Williams  v,  Cor- 

V.  Luhring,  69  111.  401;  Denton  v.  belt,  28  111.  262;   Frame  v.  August, 

Jackson,  106  111.  433.  88  111.  424;  Power  v.  Rankin,  114  IlL 

*  Ruggles  v.    Gatton,  50  III.  413;  52. 
Borchsenius  v.  Canutson,  100  111.  82. 


163 


DEFENSES    TO   THE    ACTION   OF  ASSUMPSIT. 


ing  or  not,'  A  verbal  promise  to  accept  or  pay  an  existing  or 
non-existing  bill  of  exchange,  is  not  within  the  statute  of 
frauds,  and  is  valid.* 

Where  a  person  enters  into  a  verbal  contract  with  another, 
for  the  benefit  of  a  third  person,  such  third  person  may  main- 
tain an  action  for  a  breach  of  the  contract,  and  such  a  con- 
tract is  not  within  the  statute  of  frauds.^  And  where  A.  owes  B., 
and  B,  owes  C,  and  it  is  agreed  among  them  that  the  debt  from 
B.  to  C.  shall  be  canceled,  and  that  A.  shall  pay  his  debt  to  C, 
the  agreement  is  binding,  although  not  in  writing.'  A  con- 
tract for  services,  which  by  its  terms  is  not  to  be  performed 
within  the  space  of  one  year  from  the  making  thereof,  is 
within  the  statute  of  frauds,  and  can  not  be  enforced.^ 

The  cases  relating  to  the  statute  of  frauds,  decided  in  the 
supreme  court  of  Illinois,  and  not  already  cited,  are  given  in 
the  note  below."  Many  of  these  have  relation  to  that  branch 
of  the  statute  which  refers  to  contracts  concerning  lands. 


'  Hite  V.  Wells,  17  111.  88;  Eddy  v. 
Roberts,  17  111.  505;  Durant  v.  Rog- 
ers, 71  111.  121;  Patmor  v.  Haggard, 
78  111.607;  Laidlow  v.  Hatch,  75  111. 
11;  Graham  v.  Mason,  17  Bradw. 
399. 

'^Nelson  v.  Bank,  48  111.  36;  see 
Jones  V.  Bank,  34  111.  319;  Mason  v. 
Dousay,  35  111.  424. 

8  Eddy  V.  Roberts,  17  lU.  505;  Brown 
V.  Strait,  19  111.  88;  Pi-ather  v.  Vine- 
yard, 4  Gilm.  40;  Wilson  v.  Bevans, 
58  111.  232;  Walden  v.  Karr,  88  111. 
49;  Thompson  v.  Dearborn,  107  111. 
87;  Parsons  on  Cont.  303,  307,  308, 
and  notes  m  and  w. 

4  Corbin  v.  McChesney,  16  111.  232; 
see  Prather  v.  Vineyard,  4  Glim. 
40;  Eddy  v.  Roberts,  17  111.  505; 
Broumv.  Strait,  19  111.88;  Bristow 
V.  Lane,  21  111.  194;  Lindleyy.  Simp- 
son, 45  111.  App.  648. 

f- Steel  Works  V.  Atkinson,  68  111. 
421;  Haynes  v.  Mason,  30  111.  App. 
85;  Schanzenbach  v.  Brough,  58  111. 
App.  526. 


^Everett  v.  Morrison,  Breese  79; 
Whitney  v.  Cochran,  1  Scam.  209; 
Thornton  v.  Davenport,  1  Scam. 
296;  Prevo  v.  Lathrop,  1  Scam.  305; 
Updike  V.  Annstrong,  3  Scam.  564; 
Perry  Y.  McHenry,  13111.  227;  Jeffer- 
son V.  Ferguson,  13  111.  33;  Davis  v. 
Hop)kins,  15  111.  519;  Ballingall  v. 
Bradley,  16  111.  373;  Bourland  v. 
Peoria  Co.,  16  111.  538;  McConnell 
V.  Brillhart,  17  111.  354;  Stevens  \. 
Wheeler,  25  111.  300;  Bozza  \.  Rowe, 
30  111.  198;  3Iason  v.  Blair,  33  111. 
195;  Keys  v.  Test,  33  111.  316;  Par- 
sons V.  Coal  Co.,  38  111.  430;  Fitz- 
simmons  v.  Allen,  39  111.  440;  Chi- 
cago V.  Hyde,  40  111.  150;  Bright  v. 
Bright,  41  111.  97;  Poivell  v.  Rich,  41 
111.  466;  Holmes  v.  Holmes,  44  111. 
168;  3Ioore  v.  Titman,  44  111.  367; 
Rugglesv.  Gatton,  50111.412;  Holmes 
V.  Holmes,  49  111.  31;  Kaiie  v.  Har- 
rington. 50  111.  232;  Lantry  v.  Lan- 
try,  51  111.  458;  Runde  v.  Runde,  59 
111.  98;  Warner  v.  Hale,  65  111.  395; 
Cox  V.  Siraisi;er,  62  111.  383;  White  v. 


DEFENSES   TO    THE   ACTION    OF   ASSUMPSIT.  169 

No.  96.    Plea  of  the  statute  of  frauds — Agreement  not  to  he  performed 
within  a  year,  and  not  in  writing. 

{First  plea,  non  assumpsit,  as  ante,  No.  S2;  second  plea  as  ante,  No.  S5,  to 
the  asterisk,  and  then  proceed:)  that  each  and  every  one  of  tlie  sevei-al  sup- 
posed promises  in  the  said  declaration  mentioned  was  an  agreement  which 
was  not  to  be  performed  within  the  space  of  one  year  from  the  time  of  the 

making  thereof,  to  wit,  the day  of ,  in  the  year  18 — ,  and  was  not 

nor  is,  nor  was  nor  is  any  memorandum  or  note  thereof,  in  writing,  signed 
by  the  defendant,  or  by  any  other  person  thereunto  by  him  lawfully  au- 
thorized, according  to  the  form  of  the  statute,  etc. :  And  this,  etc.  {con- 
clude with  a  verification,  as  ante,  No.  85.) 

No.  97.    Replication  to  No.  96,  that  agreement  was  to  be  performed  within 

a  year. 

{As  in  No.  S6,  ante,  to  the  aste7-isJc,  and  then  proceed:)  that  each  and  every 
one  of  the  said  several  promises  was  an  agreement  "which  was  to  be  per- 
formed within  the  space  of  one  year  from  the  time  of  making  thereof  as 
aforesaid,  and  not  an  agreement  which  was  not  to  be  performed  within  the 
space  of  one  year  from  that  time,  as  the  defendant  has  above  in  that  plea 
alleged:  And  this  the  plaintiff  prays  may  be  inquired  of  by  the  country,  etc. 

The  plaintiff  may  rely  that  the  agreement  was  in  writing 
and  signed,  etc.,  and  set  out  the  agreement  in  the  replication,* 

No.  98.     Plea  of  the  statute  of  frauds — Promise  teas  to  answer  for  the  debt  of 
another  person,  and  was  not  in  writing. 

{First  j^lea,  non  assumpsit,  as  in  No.  83,  ante;  second  plea  as  ante.  No.  85, 
to  the  asterisk,  and  then  proceed:)    that  each  and  every  one  of  the  several 

Jtfai«and,  71  111.  250;  Scott  T.Wliite.  v.  Fernandes,  126  111.   230;  Doiigh- 

71  111.  287;  Carpenter  v.  Davis,  74  erty  v.  Cuttell,  129  111.  438;  Allison 

111.  14;  Wheeler  v.   Frankenthal,  78  v.    Perry,   130  111.  16;  Morrison  v. 

111.  124;   Tel.   Co.  v.  R.  R.  Co.,  86  Herrick,r60  111.  631;  KochY.    Nafl 

111.  246;  Hayward  v.  Gunn,  82  111.  Union,  137  111.  497;  Neagle  v.  Kelly, 

385;  Bradley  v.  Coolbaugh,    91   111.  146  111.  460;  Leavitt  v.  Steam,  159 

148;  Kershmo  v.    Kershaw,   102  111.  111.  526;  Mathers  v.  Carter,  7  Bradw. 

307;  Albertson  v.  Ashton,  102  111.  50;  225;  Geelan  v.  Reid,  22  Dl.  App.  165; 

Warren  v.  Warren,  105  111.  568;  Ins.  People  v.  Brooks,  22  111.   App.  594; 

Co.  V.  White,  106  111.  67;    Chappell  Murtox.  McKnight,  28111.  App.  248; 

V.  McKnight,  108  111.  570;  Wliitsett  v.  Ingraham  v.  Strong,  41  111.  App.  46; 

Trustees,  110  111.  125;  Bay  v.  Will-  Tanquary  v.    Walker,   47  111.  App. 

iams,  112  111.  96;  Fishbeck  v.  Gross,  451;  McCarland  v.   Doorley,  47  111. 

112  111.  214;  Irwin  v.  Drake,  114  111.  App.  513;  Stein  v.   Bleake,   56  111. 

305;  Clark  v.    Clark,   122  111.    391;  App.  525. 
Vallette  v.  Tedens.  122111.  610;  Cloud  >  11  Price,  494. 

V.  Greasley,  125  111.   316;  McGinnus 


170  DEFENSES    TO    THE    ACTION    OF    ASSUMPSIT. 

supposed  promises  in  the  said  declaration  mentioned  was  a  special  promise 
to  answer  for  the  debt  of  another  person,  to  wit,  one  {or  "  the  said  ")  L.  M., 
and  was  not  nor  is,  nor  was  nor  is  any  memorandum  or  note  thereof, 
in  writing,  signed  by  the  defendant,  or  by  any  other  person  thereunto  by 
him  lawfully  authorized,  according  to  the  form  of  the  statute,  etc. :  And 
this,  etc.  (cotichide  with  a  verification,  as  in  No.  S5,  ante). 

No.  99.     Replication  to  No.  9S,  that  the  promise  was  not  to  answer  for 
the  debt  of  another  person. 

{As  in  No.  S6,  ante,  to  the  asterisk,  and  then  proceed:)  that  the  several 
promises  aforesaid  were  not  special  promises,  nor  was  either  of  them  a 
special  promise,  to  answer  for  the  debt  of  the  said  L.  M.,  as  the  defend- 
ant has  above  in  that  plea  alleged:  And  this  the  plaintiff  prays  may  be 
inquired  of  by  the  country,  etc. 

The  above  forms  of  pleas  can  be  readily  adapted  to  any- 
other  cases  within  the  statute — promises  b}''  executors  or  ad- 
ministrators, agreements  upon  consideration  of  marriage,  or 
contracts  concerning  hinds,  etc. 

PLEA     OF    FRAUD. 

A  plea  which  attempts  to  set  up  fraud  should  aver  a 
sdenter;'  but  it  would  seem  that  an  averment  that  the  plaintiff 
"  falsely  and  fraudulently  represented,"  etc.,  is  sufficient,*  It 
is  held  that  the  burden  of  charging,  as  of  proving,  fraud,  is  on 
the  party  alleging  it;  and  that  while  it  is  not  necessary  or 
proper  that  he  should  spread  out,  in  his  pleadings,  the  evidence 
on  which  he  relies,  he  must  aver  fully  and  explicitly  \hQ  facts 
constituting  the  alleged  fraud,  and  not  mere  conclusions.^  But 
it  seems  that  at  common  law  it  is  in  general  unnecessary  to 
state  the  particulars  of  fraud,  at  least  in  a  replication.'  Fraud 
must  always  be  proved;  the  law  never  presumes  it.*  It  may, 
however,  be  proved  by  circumstances.* 

1  White  V.  Watkins,  23  111.  480.  *  1  Chit.    PI.    502;   2  Swan's    Pr. 

2  Richards  v.  Betzer,  53  111.  466;  1       742. 

Chit.  PI.  338.  *  Wright   v.  Grover,   27   111.   426; 

3  Keller  v.  Voivell,  17  Ark.  445;  Stewart  v.  English,  6  Ind.  167;  1 
Keller  v.  Johnson,  11  Ind.  337;  Cole  Chit.  PL  204;  Kiehn  v.  Bestor,  30  111. 
V.  O.  H.  Co.,  79  111.  96;  Jones  v.  Al-  App.  458;  E.  St.  L.  v.  Trustees,  123 
bee,  70  111.    34;  Hopkins    v.  Wood-  111.  643. 

ward,  75  111.  62;   Waj'd  v.   Lnneen,  *  Bryant  v.  Simoneau,  15  111.  324; 

25  111.   App.    160;  Endsley  v.  John,  Bullock  v.  Narrott,  49  111.  62;  Boies 

120  111.  475;  Gas   Co.  v.  Higbie,  134  v.   Henney,  32  111.  130:  Botvden  v. 

111.  557;  Stunz  v.  Stunz,  131  111.  318.  Bowden,  75  111.  143;  Edlevianv.  By- 


DEFENSES    TO   THE    ACTION    OF    ASSUMPSIT.  171 

Fraud  may  consist  in  making  a  false  representation  with 
the  knowledge  at  the  time  that  it  is  false,  and  with  a  design 
to  deceive  and  defraud,  or  in  the  willful  concealment  of  the 
truth  for  a  similar  purpose.'  It  can  not  exist  without  an  in- 
tention to  deceive.* 

Fraud  vitiates  all  acts,  as  between  the  parties  to  such  acts, 
and  is  cognizable  in  a  court  of  law,  as  well  as  in  equity.^  It 
is  not  every  false  affirmation  that  amounts  to  a  fraud,  A 
knowledge  of  the  falsehood  of  the  representation  must  rest 
with  the  person  making  it,  and  he  must  use  some  means  to 
deceive  to  make  it  a  fraud.* 

Where  a  transaction  is  tainted  with  fraud,  as  between 
the  parties  to  the  fraud,  a  court  will  not  assist  either,  but  will 
leave  them  in  the  position  where  they  have  placed  themselves.* 
In  actions  upon  instruments  which  are  covered  b}^  the  statute 
concerning  negotiable  instruments,  fraud  in  the  considera- 
tion may  be  shown;  but  as  to  a,  sealed  instrument  not  within 
the  statute,  fraud  in  the  consideration  can  not  at  lavr  be  made 
a  defense.* 

Where  fraudulent  representations  are  made  with  the  inten 
tion  to  deceive  and  defraud  the  person  to  wdiom  they  are  made, 
and  he  thereby  suffers,  the  person  making  such  representations 

ers,  75  111.    367;   Johnson  v.  Worth-  *  Sims  v.  Klein,  Breese  302;  Diin- 

ington,  30  111,  App.   617;  Fowler  v.  bar    v.     Bonesteel,     3     Scam.     32; 

Loomis,  37111.  App.  363.  Fames  v.  Morgan,  37  111.  260;  Rich- 

^Sims  V.  Klei7i,  Breese   302;    3/c-  ards  v.  Betzer,  53  111.  466;    see  3/er- 

Connell   v.  Wilcox,    1    Scam.    344;  ryman  v.  David,  31  111.  404;  Fish  v. 

Kohe  V.  Lindley,  39  111.  195;  Mitchell  Cleland,     33     111.    238;     Miller    v. 

V.  Deeds,  49  111.  416;   see  Lockridge  Young,  33   111.    355;    Fauntleroy  v. 

V.  Foster,   4  Scam.   569;    3Iiller  v.  Wilcox,     80     111.    477;     Heicett    v. 

Craig,  36  111.  109;   2  Kent's  Com.  Johnson,    72    111.    513;    Kenner   v. 

490;    Whitside  v.    Taylor,  105    111.  Harding,    85   111.   264;    By.  Co.   v. 

496.  Rice,  85   111.  406;   Bond  v.  Ramsey, 

2  Miller  v.    Howell,  1    Scam.  499;  89  lU.  29. 

Walker  v.  Hough,  59  III.  375;    By.  "  3Iiller  v.   Marckle,   21    111.    152; 

Co.  V.  Rice,  85  111,  406;    Wharf  v.  Winston     v.     McFarland,     22    111. 

Roberts,  88  111.  426.  38  ;    see    Anderson   v.    Warne,   71 

^Express  Co.  v.  Willsie,  79  111.  92;  111.  20. 

Jamison  v.   Beauhien,  3  Scam.  113;  s  Hawkins  v.  Harding,  37  111  App. 

Loivry  v.  Orr,  1   Gilm.  70;    Rogers  564, 
V.  Brent,  5  Gilm.  573;  Slack  v.  Mc- 
Lagan,  15  111.  242, 


172  DEFENSES    TO   THE    ACTION   OF   ASSUMPSIT. 

will  be  liable.'  But  if  such  false  representations  are  made  in 
the  belief  that  they  are  true,  and  the  person  making  them  has 
no  reason  to  believe  them  to  be  false,  they  will  not  be  held 
fraudulent,  and  will  not  render  him  liable.'' 

Evidence  of  oral  representations,  made  by  a  party  before  the 
making  of  a  written  contract,  may  be  introdiiced  to  show 
fraud;  "*  and  a  fraudulent  intent  may  be  found  from  the  act  of  a 
purchaser  after  the  sale.^  All  the  members  of  a  partnership 
are  liable  for  the  fraud  of  one  of  them,  or  of  their  agents  in 
the  course  of  their  employment,  in  the  sale  of  partnership 
property.* 

Under  the  statute  of  Illinois,  the  plea  of  fraud  in  obtaining 
the  making  of  the  instrument  is  good  against  an  innocent  as- 
signee." The  plea  of  fraud  in  obtaining  the  execution  of  a 
note  and  mortgage  may  be  set  up  as  well  in  a  suit  by  an  as- 
signee as  in  a  suit  by  the  person  to  whom  they  were  made.' 

Where  the  question  of  fraud  is  one  of  extent,  it  is  to  be  de- 
termined by  the  jury.*  The  fraud  which  will  vitiate  a  note, 
in  the  hands  of  an  innocent  assignee,  must  be  fraud  practiced 
in  obtaining  the  execution  of  the  note.  Fraud  in  respect  to 
the  consideration,  or  in  the  contract  on  which  the  note  is 
given,  is  not  sufficient.' 

Where  one  who  was  sued  on  a  promissory  note  pleaded,  not 
that  he  did  not  know  he  was  signing  such  a  note,  but  merely 
that,  by  the  terms  of  an  instrument  attached  to  the  note  when 
it  was  executed,  it  was  only  to  be  paid  on  a  certain  contin- 
gency, which  did  not  happen,  and  that  this  instrument  was 
wrongfully  detached  from  the  note  after  its  execution,  it  was 

1  Bank  v.  Hamilton,  2  Ind.  457;  (1895),  106^;  Starr  &  Curtis  1665; 
Fames  v.  Morgan,  37  111.  260;  see  Woods  v.  Hynes,  1  Scam.  103;  Mul- 
Kohl  V.  Lindley,  39  111.  195;  Wharf  ford  v.  Shepard,  1  Scam.  583; 
V.  Eoherts,  88  111,  426.  Adams  v.  Woldridge,  3   Scam.  255; 

2  Bank  v.  Hamilton,  2  Ind.   457;  Hewitt  v.  Jones,  73  111.  218. 
Hopper  V.  Sisk,  1  Ind.  176;  Bond  v.  '  Marshall  v.  Billingsly,!  Ind.  250; 
Ramsey,  89  111.    29;   Grier  v.  Puter-  Wilson  v.  Miller,  72  111.  616. 
haugh,  108  111.  602.  « Marshall  v.  Billingsly,  7  Ind.  250; 

3  Holbrook  v.  Burt,   22  Pick,  546;  Smith  v.  Brittenham,  109  111.  541. 
Wilson  V,  Watts,  9  Md.  356.  »  M^ood  v.   Hynes,   1    Scam,    103; 

*  Bowen  v.  Schider,  41  111.  192,  Mulford  v.  Shepard,   1   Scam,    583; 

'  Locke  V,  Stearns,  1  Mete,  560,  Latham  v.  Smith,  45  111.  2l5;Richei:cu 

«  Rev,  Stat,  (1893),  994;  Rev,  Stat      v.  Encampment,  140  111,  248. 


DEFENSES    TO    THE    ACTION    OF    ASSUMPSIT.  173 

held  that  tliese  facts  did  not  constitute  fraud  in  obtaining  the 
execution  of  the  note,  but  fraud  perpetrated  after  its  execution, 
and  therefore  could  not  avail  as  a  defense  aii^ainst  an  assio-nee 
before  maturity.'  But  in  a  case  where  it  appeared  that  the 
defendant,  under  circumstances  which  showed  no  lack  of  rea- 
sonable caution  on  his  part,  signed  a  paper  which  he  did  not 
know  was  a  note  at  all,  but  was  induced  to  believe  was  an  in- 
strument of  an  entirely  different  character — and  it  was  prob- 
able that  the  note  sued  on  was  embraced  in  the  paper  which 
the  defendant  executed,  ar.d  was  afterward  detached  and 
assigned — the  defense  of  fraud  and  circumvention  was  sus- 
tained ao;ainst  an  assig'nee  before   maturitv." 

Diligence  required  of  maker  of  note. — The  mere  fact  that  a 
person  can  read  will  not  cut  him  off  from  alleging,  even 
against  an  assignee  before  maturity,  that  the  execution  of  a 
promissory  note  made  by  him  was  obtained  by  fraud  and  cir- 
cumvention. But  he  who  signs  a  paper  should  use  reasonable 
and  ordinary  precautions  to  avoid  imposition;  if  able  to  read 
readily,  he  should  examine  the  instrument;  if  unable  to  read, 
or  able  only  to  read  with  difficulty,  he  may  have  it  read  to 
him  by  some  one  present.  He  can  not  act  recklessly,  disre- 
garding all  the  usual  precautions,  and  then  interpose  the  de- 
fense of  fraud  as  against  the  assignee.* 

Diligence  required  of  assignee  of  note. — The  assignee, 
equally  with  the  maker,  is  bound  to  use  proper  diligence. 
Where  strangers  offer  to  sell  promissory  notes,  under  circum- 
stances which  ought  to  arouse  suspicion,  a  purchaser  of  such 
notes,  who  could  ascertain  the  truth  in  regard  to  them  by  in- 
quiring of  the  supposed  maker,  will  be  deemed  to  have  acted 
without  due  caution  if  he  fails  to  make  such  inquiry.* 

If  fraud  and  circumvention  are  used  in  procuring  the  exe- 
cution of  a  note,  and  the  payee  is  a  party  to  such  fraud  and 

'  Clarke  v.   Johnson,   54  111.  296;  v.   Watson,  71  111.  456;  Ry.  Co.  v. 

Vanhruntv.  Singley,Sbl\\.2S\;Sim  Lewis,  13  Bradw.  166;    Carroll   v. 

V.   Pyle,   84  111.   271;    Stevenson  v.  People,  13  Bradw.  206;   Brophy  v. 

O'iVeaZ.  71111.314.  Lawler,    107    111.    284;    Muhlke    v. 

'Taylor  v.   Atchison,  54  111.   196!  ^eg^erness,  56111.  App.  322;  see  JTmgr- 

Champion  v.  Ulmer,  70  111.  322.  man  v.  Reinemer,  58  III.  App.  173. 

^Taylor  \.  Atchison,  54   111.    196;  *  Ibid. 
Holmes  v.  Hale,  71  III.  552;  Swannell 


17-i 


DEFENSES   TO   THE   ACTION   OF   ASSUMPSIT. 


circumvention,  the  note  is  void.  It  is  otherwise  if  he  is  free 
from  any  participation  in  the  fraud.'  If  the  party  defrauded 
acquiesces  in  or  confirms  the  contract,  with  full  knowledge  of 
the  fraud,  others  not  defrauded  or  injured  can  not  avoid  the 
contract  for  him."  Advantage  can  not  be  taken  of  a  fraud 
except  by  the  party  defrauded  or  injured,^ 

A  surety  or  guarantor  can  not  interpose  the  fraudulent  or 
false  representations  of  his  principal  as  a  defense  to  the  pay- 
ment of  a  note  or  bond,  without  connecting  the  payee  with 
such  representations.* 

See  further,  as  to  fraud  generally,  the  additional  Illinois  cases 
noted  below.* 

iVo.  100.    Plea  of  fraud  and  circumvention  in  obtaining  execution  of  in- 
strument. 

(First  plea,  non  assumpsit,  as  ante,  No.  82;  second  plea  as  in  No.  85,  ante, 
to  the  asterisk,  and  then  proceed :)  that  the  several  supposed  causes  of  action 
in  the  said  declaration  mentioned  are  one  and  the  same,  to  wit,  t'le  supposed 
cause  of  action  in  the  first  count  of  the  said  declaration  mentioned,  and  not 
different  causes  of  action;  and  that  the  execution  uf  the  writing  or  supposed 


I  Easter  v.  Minard,  26  111.  494. 

'  Edmunds  v.  Hildreth,  16  111.  214. 

3  Edmunds  v.  Hildreth,  16  111.  214; 
Walbridge  v.  Day,  31  111.  379;  Shel- 
don V.  Harding,  44  111.  68;  Howell  v. 
Edmonds,  47  111.  79;  Machine  Co.  v. 
Buckles,  89  111.  243:  Ladd  v.  Trust- 
ees, 80  111.  233;  Mathewv.  Cowan,  59 
111.  341;  Stonerv.  Millikin,  85111.  218. 

*  Davis  V.  Buckles,  89  111.  243; 
Ladd  V.  Trustees,  80  111.  233;  Smith 
V.  Board,  59  111.  413;  Stoner  v.  Mil- 
likin, 85  111.  218. 

5  Tou-cll  V.  Gatewood,  2  Scam.  23; 
Pou-ell  V.  Jeffries,  4  Scam.  387;  Dra- 
per V.  McFarland,  1  Gilm.  310;  Cho- 
teanv.  Jones,  11  111.  301;  Jefferson  v. 
Ferguson,  13  111.  33;  Nelson  v.  Rock- 
ivell,  14  111.  375;  Clement  v.  Evans, 
15  111.  92;  Kennedy  v,  Northup,  15 
111,  148;  Grimes  v.  William,  16  111. 
47;  Waggojier  v.  Cooley,  17  111.  239; 
Brown  v.  Riley,  22  111.  45;  Whitney 
V.  Roberts,  22  111.  381;    Warner  v. 


Carleton,  22  III.  415;  Chaffin  v.  Kim- 
ball, 23  111.  36;  Neece  v.  Haley,  23  111. 
416;  Bank  v.  Godfrey,  23  111.  579; 
De  Wolfv.  Hayden,  24111.  529;  Lloyd 
V.  Higbie,  25  111.  603;  Myers  v.  Kin- 
zie,  26  111.  36;  Fuller  v.  Paige,  26  111. 
358;  Moore  v.  Bracken,  27  111.  23; 
Gosney  v.  Frost,  27  111.  53;  Scarlett 
V.  Gorham,  28  111.  319;  Nelson  v. 
Smith,  28  111.  495;  Wood  v.  Shaw,  29 
111.  444;  Perley  v.  Catlin,  31  111.  533; 
Gray  v.  St.  John,  35  111.  222;  Wight- 
man  V.  Hart,  37  111.  123;  Cameron  v. 
Savage,  37  111.  172;  Hessing  v.  3Ic- 
Closkey,  37  111.  341;  Blue  v.  Blue,  38 
111.  9;  Lockwood  v.  Mills,  39  111.  603; 
Taylor  v.  Hopkins,  40  111.  442;  Ryan 
V,  Brant,  42  111.  78;  Peters  v.  Smith, 

42  111.  417;  Waterman  v.  Donalson, 

43  111.  29;  Underwood  v.  West,  43  111. 
403;  Blow  v.  Gage,  44  111.  208:  Banta 
V.  Palmer,  47  111.  99;  Shinkler  v. 
Letcher,  47  111,  216;  JoJmson  v.  iriZ- 
son,  33  111,  App.  639. 


DEFENSES    TO   THE   ACTION   OF   ASSUMPSIT.  175 

promissory  note  in  that  count  mentioned  was  obtained  from  the  defendant, 
by  the  plaintiff,  {or,  if  the  action  is  by  an  assignee,  say  "by  the  said  J.  K.," 
the  payee,  or  by  the  beneficiary,)  by  fraud  and  circumvention,  that  is  to  say, 
that  {here  set  forth  the  facts  constituting  the  fraud,  and  that  the  defendant, 
confiding,  etc.,  executed  the  icriting,  etc. — see  next  form).  And  this  etc. 
{conclude  loith  a  verification,  as  in  No.  So,  ante). 

No.  101.  Plea  of  fraud— In  action  by  assignee  of  note,  plea  by  surety  that 
execution  of  note  was  obtained  from  him  by  fraud  of  payee  and  prin- 
cipal.^ 

{First  plea,  non  assumpsit,  as  ante,  No.  S2.)  And  for  a  further  plea  in 
this  belialf ,  the  defendant  E.  F.  says  that  the  plaintiff  ought  not  to  have  his 
aforesaid  action  against  him,  the  said  E.  F.,  because  he  says,  that  the  sev- 
eral supposed  causes  of  action  in  the  said  declaration  mentioned  are  one 
and  the  same,  to  wit,  the  supposed  cause  of  action  in  the  first  count  of  the 
said  declaration  mentioned,  and  not  different  causes  of  action;  and  that  the 
execution  of  the  writing  or  supposed  promissory'  note  in  that  count  men- 
tioned was  obtained  from  him,  the  said  E.  F.,  by  the  said  J.  K.  {the  payee) 
and  the  said  C.  D.,  {the  principal,  and  co-defendant,)  by  the  use  of  fraud 
and  circumvention,  that  is  to  say,  that  the  said  J.  K.  and  C.  D.,  colluding 
to  injure  and  defraud  the  said  E.  F.,  before  the  execution  of  the  said  writ- 
ing, to  wit,  on  the  said  {date  of  note),  in  the  county  aforesaid,  falsely  and 
fraudulently  represented  to  the  said  E.  F.  that  if  he  would  execute  the  said 
writing  as  a  surety  for  the  said  C.  D.,  one  L.  M.  would  also  execute  the 
same  as  a  co-surety;  and  the  said  J.  K.  and  C.  D.  then  and  there  falsely 
and  fraudulently  promised  the  said  E.  F.  that  the  said  writing  should  not 
be  delivered  to  or  received  by  the  said  J.  K.  unless  the  said  L.  M.  should  so 
execute  the  same  as  aforesaid;  and  thereupon  the  said  E.  F.,  confiding  in 
the  false  and  fraudulent  representation  and  promise  aforesaid,  then  and 
there  executed  the  said  writing  as  a  surety  for  the  said  C.  D. ,  and  not 
otherwise,  and  without  any  consideration  whatsoever.  And  the  said  E  F 
further  says,  that  thereupon  the  said  writing  was  by  the  said  C.  D.  then  and 
there  fraudulently  delivered  to  the  said  J.  K.,  and  by  him  fraudulently  re- 
ceived, although  the  said  L.  M.  did  not  nor  would  then  or  at  any  other 
time  execute  the  said  writing  as  a  co-surety  as  aforesaid ,  or  otherwise 
And  this,  etc.  {conclude  tcith  a  verification,  as  in  No.  85,  ante). 

No.  102.    Replication  to  No.  100  or  No.  101,  denying  that  execution  of 
instrument  was  obtained  by  fraud. 

{As  in  No.  S6,  ante,  to  the  asterisk,  and  then  proceed :)  that  the  execution 
of  the  said  promissory  note  was  obtained  fairly,  and  not  by  the  fraud  or  cir- 
cumvention of  the  plaintiff,  {or,  if  action  is  by  an  assignee  "of  the  said 
J.  K.")  in  manner  and  form  as  the  defendant  {or  "  the  said  E.  F.")  has 
above  in  that  plea  alleged  :  And  this  the  plaintiff  prays  may  be  inquired 
of  by  the  country,  etc. 

'  Easter  v.  Minard,  26  111.  494. 


176  DEFENSES   TO   THE   ACTION   OF   ASSUMPSIT. 

PLEA   OF     USURY. 

The  act  of  1879— in  relation  to  interest  and  usury — as 
amended  by  act  of  1891,  provides  that  parties  to  contracts  may 
agree  upon  any  rate  of  interest  not  exceeding  seven  per  cent 
per  annum;  and  that  if  any  greater  rate  shall  be  reserved  the 
whole  of  the  interest  shall  be  forfeited  and  only  the  principal 
sum  shall  be  recovered. 

"  The  defense  of  usury  shall  not  be  allowed  in  any  suit,  un- 
less the  person  relying  upon  such  defense  shall  set  up  the  same 
by  plea,  or  file  in  the  cause  a   notice  in  writing  stating  that . 
he  intends  to  defend  against  the  contract  sued  upon  or  set  off, 
on  the  ground  that  the  contract  is  usurious." ' 

The  defense  of  usury  is  regarded  as  in  the  nature  of  a  penal 
action,  and  not  only  is  great  strictness  required  in  the  plead- 
ings, but  the  contract  must  be  proved  as  alleged,  by  a  clear 
preponderance  of  the  evidence.'  It  is  not  sufficient  to  plead , 
in  o-eneral  terms,  that  a  transaction  was  usurious;  the  fact  con- 
stituting the  usury  must  be  set  forth.*  Usury  is  not  to  be  pre- 
sumed in  any  case.  It  must  be  made  to  appear  from  the  evi- 
dence in  the  case.  If  it  appears  on  the  face  of  the  instrument 
sued  on,  no  other  proof  would  seem  necessary,  provided  usury 
has  been  set  up  and  is  relied  on  by  way  of  plea,  or  a  notice 
filed  with  the  general  issue.*  The  plea  should  only  profess  to 
answer  so  much  of  the  declaration  or  count  as  it  really  does 
answer.^ 

Under  a  statute  which  provided  a  penalty  of  three-fold  the 
amount  of  the  interest,  and  that  the  defendant  should  recover 
costs,  it  was  held  that  this  defense  was  in  the  nature  of  a  penal 
action,  and  great  strictness  would  be  required  in  pleading  it, 
and  that  the  plea  should  state  specifically  the  amount  forborne, 
the  time  of  forbearance,  and  how  much  was  paid,  or  agreed  to 

'  Rev.  Stat.  (1893),  878;  Rev.  Stat.  v,  3Iorris,   57  111.  138;    Goodwin  v. 

(1895),  928;    1  Starr    &    Curtis  1367;  Bishop,  50  III.  App.  145. 
see  forms  of  plea;    Wilday  v.  Mor-  *  Wilson  v.  Kirby,  88111.  566;  Mur- 

Wson.  66111.  532.  ry  \.  Crocker,   1  Scam.  212:    Smith 

2  Mosier  v.  Norton,  83  111.  519,  v.  Whitaker,  23  111.  367;  Partlow  v. 

'i  Hosier   v.    Norton,   83  111.   519;  Williams,  19  lU.  132;  Frank  r.Mor- 

Hoskins  v.  Cole,    34    111.   App.  541;  ris,  57  111.  138;  Bank  v.   Barton,  21 

Dunham  v.  Tucker,  40  111.  520;  Frank  111.  App.  403. 

»  Nichols  V.  Stewart,  21  111.  106. 


DEFENSES   TO   THE    ACTION   OF    ASSUMPSIT.  177 

be  paid,  by  way  of  interest.'  To  constitute  usury,  there  must 
be  a  borroAving  and  lending  of  money,  or  the  forbearance  of 
a  pre-existing  debt.*  Discount,  or  the  taking  of  the  legal  rate 
of  interest  in  advance,  is  not  usury.'  Under  laws  declaring 
usurious  contracts  void,  the  lender  is  never  allowed  to  take 
advantage  of  the  statute,  because  he  is  the  guilty  party;  but 
the  borrower  may  do  so,  because  he  is  not  a.  pari ice2?s  crhninis. 
This  principle  is  applied  to  every  contract  declared  to  be  void 
by  statute,  in  the  making  of  which  but  one  of  the  parties  is 
guilty  of  a  violation  of  the  law.* 

Any  contract  or  assurance  for  the  loan  or  forbearance  of 
money,  or  any  other  thing,  upon  which  a  greater  rate  of  inter- 
est than  the  law  permits  has  been  directly  or  indirectly  re- 
served, discounted,  or  taken,  is  usurious.^  The  statute  against 
usury  can  not  be  evaded  by  a  substitution  of  securities.* 

The  defense  of  usury  can  not  be  set  up  against  a  note  in  the 
hands  of  an  assignee  in  good  faith,  who  received  the  note  be- 
fore its  maturity,  and  without  notice  of  the  usury.''  But  if  a 
note  tainted  with  usury  is  assigned  by  the  payee  to  a  creditor,  as 
collateral  securit}^  for  a  pre-existing  debt,  though  the  latter  is 
a  holder  for  a  valuable  consideration,  he  is  so  only  to  the  ex- 
tent of  the  debt  due  to  him;  and  the  same  defense  may  be 
made  to  the  residue  of  the  note  as  if  it  had  not  been  assigned.' 

Where  a  note  provides  that  if  it  is  not  paid  when  due  a 
greater  rate  of  interest  than  is  allowed  by  law  shall  be  paid 

'  Hancock   v.   Hodgson,  3   Scam.  ^  Delano    v.    Rood,   1  Gilm.    690; 

309.  Leonard   v.   Patton,    106     111.    99; 

2  ij)id.  Bank  v.  Davis,  108111.  633;  see  Har- 

'^  McGill    V.    Ware,    4    Scam.  21;  ris  v.  ^ressZe?-.  119  111.  467;  L'ressZer 

Goodrich  v.   Reynolds,   31   111.  490;  v.  Harris,  19  Bradw.  430. 

see  Hamill    v.    Mason,   51    111.488;  ^Hunter  v.    Hatch,  45   111.    178; 

Mitchell     V.    Lijman,    77    111.    525;  Lovelandv.  Ritter,  50  111.  bi;  Say- 

Colehour   v.  Sav.  Inst.,  90    III.  152;  lor  v.  Daniels,  37  111.  331;  Harris  v. 

Broimv.  S.  A.  M.  Co.,  110  111.   235;  Dressier.  119  111.   467;  McGuire    v, 

Hoyt  V.  Paiotucket,  110  111.  390;  Tel-  Campbell  58  III.  App.  188. 

ford  V.  Garrels,    132    111.  550;  Max-  ■>  Conkling  v.  Underhill,  3  Scam. 

ivellv.  Willett.  49  111.  App.  564;  Po-  388;  Saylor  v.  Daniels,  37   111.  331; 

len  V.  Palmer,  53  111.  App.  223;  Hos-  Hememvay  v.   Cropsey,  37  111.    357; 

kins  V.  Cole,  34  111.  App.  541.  Wooduorth  v.  Huntoon,  40  111.  131. 

*  Ferguson    v.    Sutphen,  3    Gilm.  ^Saylor  v.  Daniels,  31  lU.r 31;  see 

547;  Durst  v.  Bates,  95  111.  493.  Kleeinan  v.  Frisbie,  63  111.  483. 
12 


ITS  DEFENSES   TO   THE    ACTION    OF   ASSUMPSIT. 

from  that  time,  the  contract  will  not  be  considered  usurious.' 
If,  however,  a  note  should  be  given,  due  at  its  date,  or  in  a 
short  time,  so  as  to  induce  the  belief  that  it  was  only  designed 
to  evade  the  statute,  it  would  be  deemed  usurious/ 

A  provision  in  a  promissory  note  for  the  payment  of  the  high- 
est legal  rate  of  interest  from  its  date,  annually,  and  if  not  so 
paid,  the  annual  interest  should  become  principal  and  bear  the 
same  rate  of  interest  as  the  original  principal,  does  not  render 
the  note  usurious,  and  the  principal  is  recoverable  with  the 
interest  named.  But  the  law  will  not  allow  the  recovery  of 
compound  interest. 

There  are  but  two  exceptions  to  this  latter  rule :  first,  in  rela- 
tion to  interest-bearing  coupons  attached  to  bonds,  or  other 
securities,  for  the  payment  of  money.  Such  coupons,  when 
payable  to  bearer,  have,  by  commercial  usage,  the  legal  effect  of 
j^romissory  notes.  The  interest  on  such  bonds  is  not  com- 
pounded indefinitely,  but  once  only.  The  second  exception  is 
in  cases  where,  the  interest  having  become  due  and  remaining 
unpaid,  the  debtor  then  agrees  to  have  the  accrued  interest 
added  to  the  principal  and  become  interest-bearing.^ 

An  agreement  in  a  note  that  in  the  event  that  it  is  not  paid 
at  maturity,  and  shall  be  placed  in  the  hands  of  an  attorney  for 
collection,  the  maker  will  pay  a  specified  sum  as  attorney's 
fee,  is  not  usurious.* 

A  note  made  payable  one  day  after  date,  and  if  not  paid 
when  due  to  draw  twenty  per  cent  interest,  is  usurious,  if  it 
was  the  understanding  of  the  parties  that  it  should  not  be 
paid  when  due,  but  should  draw  the  rate  of  interest  specified." 
If  there  is  no  design  to  evade  the  statute  against  usury,  interest 
at  a  rate  greater  than  the  legal  one  may  be  agreed  to  be  paid 

^  Funk V.  Buck,  91  111.  515;  Colony  ^  Botmian  v.  Neelij,  137  111.   443; 

V.   Edgerton,  26  111.   54;    Gould  v.  same  case,   151   111.  37;    Telford  v. 

Colony,  35  111.  324;  Davis  v.  Eider,  Garrels,  132  111.  550. 

53  111.  416;   Sanner  v.  Smith,  89  111.  *  Barton    v.   Bank,    122  111.    352; 

123;  Downey  v.  Beach,  78  111.  53.  Bicker  v.  Scofield,  28  111.  App.  32. 

2  Gould    V.    Colony,  35    111.    324;  » Osbom  v.  McCoicen,  25  111.  218; 

Davis  \.  Rider,  5S  111.416;  Pike  v.  Gould  v.    Colony,   35   III.    324;    see 

Crist,  63  111.  461;    Wilday  v.   Mor-  Walker  v.  Abt,  83  111.  226;  Burke  v. 

rison,  66  111.  532;  Witlwoiov.  Briggs,  Raab,  4  Bradw.  338. 
67  111.  96. 


DEFENSES    TO   THE    ACTION    OF    ASSUMPSIT.  179 

for  delay  in  the  pa^nnent  of  money  after  it  becomes  due, 
though  no  certain  time  of  forbearance  is  agreed  upon.' 

It  is  not  presumed  that  the  purchaser  of  a  note  from  the 
payee,  a  bill-broker,  knew  that  the  transaction  in  wliich  the 
note  was  given  was  usurious,  merely  because  such  broker  had 
before  sold  other  notes  to  the  same  purchaser  at  usurious  rates. 
A  payee  of  a  note  may  sell  it  at  such  rate  as  he  may  choose."* 

In  equity,  a  creditor  defendant,  against  whom  his  debtor 
obtains  relief  on  the  ground  of  usury  in  the  contract,  forfeits 
only  so  much  interest  as  is  in  excess  of  the  amount  allowed 
by  law — upon  the  principle  that  be  who  seeks  equity  must  do 
equity;  ^  but  a  creditor  complainant,  where  the  transaction  is 
shoAvn  to  have  been  usurious,  forfeits  all  interest.* 

In  Illinois,  since  the  passage  of  the  act  of  1857,  usurv  vol- 
untarily paid  can  not  be  recovered,"  or  even  when  paid  by 
means  of  a  sale  of  property  under  a  power  of  sale  contained  in 
a  mortgage;^  nor  can  it  be  made  available  under  a  plea  of  set- 
off.' It  would  seem,  however,  to  be  otherwise,  at  least  in 
equity,  where  the  payment  was  compulsory,  and  under  circum- 
stances where  the  debtor  could  not  make  the  defense.* 

But  although  money  voluntarily  paid  as  usury  can  not  be 
recovered,  still,  so  long  as  any  part  of  the  debt  remains 
unpaid,  the  debtor  may  insist  on  a  deduction  of  the  usury  there- 
from. The  usury  received  is  considered  as  havino-  been 
extorted  by  means  of  the  debt,  and  is  to  be  applied  in  part  pav- 
ment   of  the   same.*     A    debtor  on   settlement,  mav,    if  he 

^  Colony  Y.  Edgerton,   26  111.  54;  TompMns  v.  Hill,  2S1\\.  b\^;  Manny 

Peavler  v.    McLaughlin,  20  Bradw.  v.  Stockton,  34  111.  306;  Ramsey \. 

536;  Bressler  V.  Harris,  19  Bradw.  Perley,  MIl\.  504:-,  Saylor  v.  Daiiiels, 

480.  37  111.  331;  Town  v.    Wood,  37   111.' 

^  Sherman   v.   Blackman,   24    111.  512;  Carter  v.  3Ioses,    39    111.    539; 

345;  Colehour  v.  Sav.  Inst.,  90  111.  Pitts  v.  Cable,  44  111.  103;  Pedicord 

152.  V.  Connard,  85  III.    102;  Scroggin  v. 

2  Farwell    v.    3Ieyer,    35    111.   40;  Broivn,  14  Bradw.  340. 

Stephen    v.    Cushman,  35    111.    186;  ^  Perkins  v.  Conant,  29  111.  184. 

Cushman    v.   Stephen,   42  111.    256;  'iJadden  v.  Jn«es,  24  111.  381. 

Kinsey  v.  Nisley,  23  111.  505;  Tooke  ^  Woodivorth  v,  Huntoon,  40  111. 

V.  Newman,  lb  1\\.%\1.  131;  see    Mason  v.    Pierce,  142  111. 

*  Snyder  v.   Griswold,  37  111.  216;  331. 

but  see  Mapps  v.  Sharp,  32  111.   13.  ^  Farwell    v.  Meyer,    35    III.    40. 

^Hadden   v.    Jnnes,  24    111.   381;  Booker  \.  Andei-son,  35  111  GO;   Say- 


ISO  DEFENSES    TO   THE    ACTION    OF    ASSUMPSIT. 

chooses,  allow  interest  on  annual  interest  due  and  unpaid,  and 
this  will  not  render  the  transaction  illegal/ 

Where  A.  and  others  give  their  note  to  B.,  to  satisfy  a  debt 
from  him  to  C,  and  the  note  is  usurious,  the  makers  of  the 
note  may  avail  themselves  of  the  defense  of  usury/  Privies 
as  well  as  parties  to  a  usurious  transaction  have  a  right  to 
take  advantage  of  the  statute  against  usury/  But  one  cred- 
itor can  not  raise  against  another  the  question  of  usury  in  be- 
half of  the  debtor/ 

By  the  statute  of  Illinois,  interest  may  be  recovered  on  a 
sum  agreed  upon  as  due,  from  the  time  of  the  agreement/ 
To  interpose  the  defense  of  usury  to  a  note  made  in  another 
state,  the  defendant  should  plead  the  statute  of  that  state,  if 
there  be  one,  which  the  note  violated/  as  usury  is  illegal  only 
as  it  is  made  so  by  statute/ 

A  contract  reserving  interest  at  any  rate  which  is  authorized 
by  the  law  of  the  country  where  such  contract  is  made,  or 
where  it  is  to  be  performed  or  paid,  will  be  recognized  and  en- 
forced in  a  court  of  another  country,  though  by  the  laAv  of  the 
latter  such  rate  of  interest  may  be  usurious/  Where  a  note 
is  made  payable  at  a  particular  place,  it  will  be  presumed  that 
the  parties  intended  to  adopt  the  law  of  that  place  in  respect 
to  the  rate  of  interest/ 

lor  V.  Daniels,  37  111.  331;  Parmalee  Stiger  v.  Bent,  111  111.  328;  Darst  v. 

V.  Laicrence,  44  111.  405;  Reinback  v.  Bates,  95  111.  493;   Mason  v.  Pierce, 

Crahtree,    77    111.    1S2;  Mitchell    v.  143  111.331;  Bank  v.  Bank,  123  111. 

Lyman, 11   111.  525;  House  v.  Davis,  510. 

60  111.  3G7;  Pike  v.  Crist,  miW.  461;  ^Colony  v.  Edgerton,   26  111.   54; 

Riddle   v.    Roscnfield,  103  111.    600;  1  Starr  &  Curtis  1356;  Clark  v.  Dut- 

Harrisy.Bressler.WMW.  467;  Bress-  ton,  69  111.  521;  Ditch  v.  Vollhardt, 

ler  V.  Harris,ld  Bradw.  430;   Mason  82  111.  134. 

V.  Pierce,  142  111.  331.  « Giddings  v.  McCumber.  51   111. 

'  Haworth  v.    Haling,  87  111.  23;  App.  373;  Barnes  v.  Whittaker,   22 

Jenkins   v.  Greenbaum,  95  111.   11;  111.    606;     Chrisman    v.     Garr,     14 

Jenkins  \.  Bank,  97  111.568;  McGov-  Bradw.  405. 

ern\.  Ins.  Co.,  109  111.  151;  Telford  'Tyler  on  Usury  65. 

V.  Garrets,  132  111.  550.  « McAllister  v.  Smith,  17  111.   328 

2  Nickerson  v.  Babcock,  23  111.  561.  see  Adams  v.  Robertson,  37   111.    45 

^Saffordv.  Fat7,  22  111.  327;  Hen-  Griffin   v.  Marine  Co.,  52   111.    130 

derson  v.  Bellew,  45  III.  322;    Valen-  Palmer  v.  Marshall  60  111.  289;  Har- 

tine  X.  Fish,  45  111.  462.  ris  v.  Bressler,  119  111.  467. 

*  Adams  \.  Robertson,  37  111.    45;  » Ibid. 


DEFENSES   TO   THE    ACTION    OF    ASSUMPSIT.  181 

A  court  of  law  may  open  a  judgment  rendered  on  a  cognovit, 
and  let  the  defendant  in  to  plead  to  the  merits,  where  usury 
is  alleged  to  constitute  a  part  of  the  amount  recovered — the 
judgment  continuing  in  force,  for  the  security  of  the  plaintiff, 
till  the  determination  of  the  issue,  when  it  may  be  reduced,  or 
set  aside,  if  the  verdict  shall  so  require,' 

The  statute  of  Anne  made  contracts  reserving  usurious  in- 
terest void,  but  the  Illinois  statute  of  1833  (and  1845)  did  not, 
and  the  rights  of  parties  under  the  two  statutes  were  very  dif- 
ferent.^ The  statute  of  Illinois  of  1849  attached  no  penalty  to 
an  usurious  transaction;  it  merely  modified  the  contract,  so 
that  the  defendant  should  be  bound  to  pay  only  the  principal 
sum,  with  legal  interest.^ 

The  sixth  section  of  the  interest  law  of  1845  (Illinois)  by  its 
terms  only  gave  an  action  for  the  recovery  of  three-fold  the 
amount  of  the  interest  paid  on  an  usurious  contract,  and  did 
not  provide  a  defense  against  usury  contracted  for  and  unpaid,* 

The  fourth  section  of  the  act  of  1845,  above  mentioned,  pro- 
vided for  a  forfeiture  of  three-fold  of  the  amount  of  the  inter- 
est reserved,  if  interest  at  a  higher  rate  than  six  per  cent 
should  be  received,,  or  agreed  to  be  paid.  This  act  was  amended 
by  the  act  of  1849,  which  allowed  the  reserving  of  interest,  in 
contracts  for  money  loaned,  at  any  rate  not  exceeding  ten  per 
cent  per  annum.  The  act  of  1857  allows  parties  to  contract 
for  the  payment  of  interest  at  an}'-  rate  not  exceeding  ten  per 
cent  per  annum,  on  "  money  loaned  or  in  any  manner  due  and 
owing,"  and  provides  that  all  the  interest  reserved  shall  be  for- 
feited, in  case  a  higher  rate  is  agreed  upon — repealing  all  other 
laws  providing  penalties  for  the  reserving  of  usurious  interest," 
Under  the  present  statute,  when  the  defense  of  usury  is  estab- 
lished the  plaintiff  can  only  recover  the  principal,  less  all  pay- 
ments made  up  to  the  time  of  trial,  No  interest  for  a  period 
before  or  after  the  maturity  of  the  note  can  be  recovered,^ 

1  i^'Zemfngf  V.  Jencfcs,  23  III  475.  Hawhe    v.   Smjdaker,    86    III.    197; 

^  McGill  V.  Ware,  4  Scam.  21.  Maker  v,  Lanfrom,  86  111.  513. 

3  Nichols  V.  Stewart,  21  lU.  106.  «  Stein  v.  Goldsmith,  44  111.    App. 

<  Lvcas  V.  Spencer,  27  111.  15.  108;  see  Harris  v.  Bressler,  119  III. 

i  Matthias   v.    Cook,  31    111.    83;  467. 


182  DEFENSES    TO   THE    ACTION    OF   ASSUMPSIT. 

The  act  of  May  24,  1879/  forbids  corporations  to  interpose 
the  defense  of  usurj'-;  and  this  statute  applies  to  insurance  com- 
panies as  well  as  to  other  corporations."  But  although  the 
debtor  is  a  corporation  and  therefore  incapable  of  interposing 
the  defense  of  usury,  a  contract  by  it  to  pay  more  than  the 
leo-al  rate  of  interest  is  nevertheless  unlawful  and  can  not  be 
enforced/ 

The  contract  is  governed  by  the  law  in  force  at  the  time  the 
contract  was  made/  Loans  made  according  to  the  provisions 
of  the  act  for  the  incorporation  of  loan  associations  have  been 
held  to  be  not  usurious,"  Brokers  negotiating  loans  of  the 
money  of  others  ma}'^  charge  the  borrower  commissions  without 
thereby  making  a  loan  at  the  full  rate  of  legal  interest  usu- 
rious." See  further,  as  to  the  law  relating  to  usury,  in  Illinois, 
the  additional  cases  noted  below.' 

No.  103.     Plea  of  usury. 

(First  plea,  non  assumpsit,  as  ante,  No.  S2.)  And  for  a  further  plea  in 
this  behalf,  the  defendant  says  that  the  plaintiif  ought  not  to  have  his  afore- 
said action  against  him,  the  defendant,  for  any  greater  sum  than^ve  thou- 
sand dollars  {the  sum  actually  received  by  the  defendant),  because,  he  says, 
that  the  several  supposed  causes  of  action  in  the  said  declaration  mentioned 
are  one  and  the  same,  to  wit,  the  supposed  cause  of  action  in  the  first  count 
of  tlie  said  declaration  mentioned,  and  not  different  causes  of  action;  and 

'  1  Starr  &  Curtis  1368;  Rev.  Stat.  "<  Leonard  v.  Patton,   106  111.  99; 

(1893),  879;  Rev.  Stat.  (1895),  929.  Bank   v.  Davis,  108  111.  633;  Thayer 

-  Ins.   Co.   V.  Hadden,  28  111.  260;  v.  Mining  Co.,  105  111.  540;  Payne  v. 

Hurdv.  Mari^le,  2  Bradw.  402.  Neivcomb,    100  111.    QU;  Kihlholz  v. 

3  Bank  v.  Ry.  Co.,  145  111.  208.  Wolf,  103  111.  362;  3Ieers  v.  Stevens, 

*  Matthias  v.  Cook,  31  111.  83.  106  111.  549;  Goodrich  v.  Rogers,  101 

5  Freeman  v.  Ass'n,  114  111.   182;  HI.  533;  Cox  v.  Ins.  Co.,  113  lU.  382; 

Holmes  v.  Smith,  100  111.  413;  Ass'n  Cooper  v.  Nock,  27  111.  301;  Ins.  Co. 

V.  Cady,  55  111.  App.  469.  v.   Hadden,  28  111.  260;  Johnson  v. 

^  Ballinger\.Bourland,SlT[\.^\^;  Thompson,    28    111.    352;    Blair   v. 

Phillips  V.  Roberts,  90  111.  492;  Boyl-  Chamberlain,  39  III.  521;  Durhamv. 

stonv.   Bain,  90  111.    283;   Hoyt  v.  Tucker,  iOlW.  519;  King  v.  Cushman, 

Ins.    Co.,  110  111.    390;  Cox  v.  Ins.  41  111.  31;  Parmaleev.  Laivrence,  48 

Co.,  113  111.  382;  Goodwin  v.  Bishop,  Hi.  331;    R.  R.  Co.  v.  Miles,  52  111. 

145  111.   421;  Callender  v.    Roberts,  174;  Galbraith  v.  Fullerton,  53  111. 

17  111   App.  539;  Telford  v.  Garrets,  126;  Driscoll  v.  Tannock,  76  111.  154; 

132  111.  550;  Proof  Co.  v.  Bank,  145  Reinback  v.  Crabtree,  77  111.  182. 

111.  481;  Sanford  v.   Kane,  133  111. 

199. 


DEFENSES    TO   THE    ACTION    OF    ASSUMPSIT.  183 

that  before  the  making  of  the  supposed  promissory  note  in  that  count  men- 
tioned, to  wit,  on,  etc.,  in,  etc.,  it  was  corruptly  and  unlawfully  agreed  be- 
tween the  plaintiff  and  the  defendant  that  the  plaintiff  should  lend  to  the 
defendant  the  said  sum  of  five  thousand  dollars,  and  should  forbear  the  same 

to  him  for  the  space  of months  from  that  day,  and  that  the  defendant, 

for  the  loan  and  forbearance  of  the  said  sum  of  money  as  aforesaid,  should 
pay  to  the  plaintiff,  at  the  end  of  that  space  of  time,  the  sum  of  five  hun- 
dred dollars,  making,  with  the  said  sum  of  money  so  to  be  lent  to  the  de- 
fendant as  aforesaid,  the  sum  of  five  thousand  five  hundred  dollars  in  the 
said  note  mentioned,  and  also  that  the  defendant  should  then  pay  to  the 
plaintiff  interest  on  the  last  mentioned  sum  of  money,  fi'om  the  day  first 
aforesaid,  at  the  rate  of  ten  per  centum  per  annum,  and  that  to  secure  the 
payment  as  aforesaid  of  the  last  mentioned  sum  of  money  and  the  said  in- 
terest, the  defendant  should  make  and  deliver  his  promissory  note  therefor 
to  the  plaintiff;  and  the  defendant  further  says,  that  thereupon,  on  the  day 
first  aforesaid,  in  pursuance  of  the  said  corrupt  and  unlawful  agreement 
the  plaintiff  tliere  lent  to  the  defendant  the  said  sum  of  five  thousand  dol- 
lars; and  that  to  secure  the  payment  thereof  and  of  the  said  sum  of  five 
hundred  dollars  as  aforesaid,  with  interest  on  both  those  sums  of  money  as 
aforesaid,  he,  the  defendant,  in  further  pursuance  of  the  said  corrupt  and 
unlawful  agreement,  theri  and  there  made  and  delivered  to  the  plaintiff 
the  said  promissory  note  in  the  first  said  count  mentioned,  and  the  plaintiff 
then  and  there  received  the  said  note  of  the  defendant,  in  pui*suance  of  the 
said  corrupt  and  unlawful  agi-eement,  and  for  the  purpose  aforesaid.  And 
the  defendant  avers  that  the  said  sum  of  five  hundred  dollars,  and  the  in- 
terest aforesaid  of  the  said  sum  of  five  thousand  five  hundred  dollars,  ex- 
ceed the  rate  of  eight  dollars  for  the  forbearing  of  one  hundred  dollars  for 
one  year,  contrary  to  the  form  of  the  statute,  etc.  By  means  whereof,  and 
by  force  of  the  said  statute,  the  said  note,  so  far  as  the  amount  thereof  ex- 
ceeds the  said  sum  of  five  thousand  dollars,  was  and  is  wholly  void  in  law. 
And  this,  etc.  {conclude  with  a  verification  as  in  No.  85,  ante). 

The  averments  of  the  plea  will,  of  course,  vary  according  to 
the  circumstances  of  the  case.  The  replication  may  be  as 
follows : 

No.  lOJ^.     Replication  to  No.  103,  that  note  was  given  on  a  legal  contract. 

{As  in  No.  S6,  ante,  to  the  asterisk,  and  then  proceed:)  that  the  said  prom- 
issorj'  note  was  made  for  a  good  and  legal  consideration,  and  not  in  pursu- 
ance of  the  corrupt  and  unlawful  agreement,  or  for  the  purpose,  in  the  said 
second  plea  mentioned,  in  manner  and  form  as  the  defendant  has  above  in 
that  plea  alleged-  And  this  tlie  plaintiff  prays  may  be  mquired  of  by  the 
country,  etc. 

PLEA    OF    SET-OFF. 

If  the  defendant  desires  to  set  off  any  counter  claim  not  in- 
cluded in  the  subject-matter  of  the  action,  as  set  up  in  the  dec- 


lS4r  DEFENSES    TO    THE    ACTION    OF   ASSUMPSIT. 

laration,  he  must  plead  it  specially  or  give  notice  in  writing 
under  the  general  issue.'  A  set-off  or  counter  claim  can  be 
pleaded  only  when  there  is  an  indebtedness  from  the  plaintiff 
to  the  defendant  which  might  be  made  the  subject  of  an  in- 
dependent suit,  and  the  filing  of  a  plea  of  set-off  is  tantamount 
to  the  institution  of  a  cross-action  by  the  defendant  against 
the  plaintiff  in  the  same  proceeding.*  The  defendant  assumes 
the  attitude  of  the  plaintiff  and  is  bound  to  prove  the  same 
facts  in  relation  to  his  demand  as  if  he  had  instituted  an  ac- 
tion upon  it.* 

The  plea  must  describe  the  debt  intended  to  be  set  off,  with 
the  same  certainty  as  a  declaration  for  the  like  demand.*  A 
plea  of  set-off  so  much  resembles  a  declaration,  that  two  parts 
of  such  a  plea  are  considered  as  two  counts  in  a  declaration, 
and  if  one  part  is  good,  a  general  demurrer  to  the  whole  is 
bad.^ 

This  defense  exists  only  by  virtue  of  the  statute,  as  at  com- 
mon law  a  defendant  could  not  set  off  his  demand  against  that 
of  the  plaintiff.*  The  statute  is  permissive,  and  not  compul- 
sory, and  the  defendant  may  waive  his  right,  and  bring  an 
action  against  the  plaintiff.' 

Under  this  plea  the  defendant  can  only  introduce  by  way  of 
set-off  such  demands  as  Avere  existing-  causes  of  action  in 
his  favor  at  the  time  the  suit  was  instituted.  He  is  not 
permitted,  after  he  has  notice  of  the  suit,  to  buy  up  claims 
against  the  plaintiff,  and,  by  producing  them  on  the  trial, 
defeat  the  plaintiff's  action,  and  subject  him  to  costs.* 

>  Chitty's  PL  595;  Cox  v.  Jordan,  560;  Pettis  v.  Westlake,  3  Scam.  535; 

86  III.  560;    Waterman  v.  Clark,  76  Kelly  v.  Garrett,  1  Gilm.  649. 

111.  428;  Hubbard  v.  Rogers,  64  111.  "- 1  Chit.  PI.  496. 

434;  Stow  v.  Yarwood,  14  111.  427;  *Babb  on  Set-off,  1;    Mwton    v. 

Jockisck  V.  Hardke,  50  111.  App.  202;  Bailey,  1  Scam.  214;  Borsdisenius  v. 

Theodorson  v.  Ahlgren,  37  111.  App.  Canutson,  100  111.  82. 

140.  '  Morton  v.  Bailey,   1   Scam.  213; 

« Litch  V.  Clinch,  136  111.  410.  Tompkins  v.  Gerry,  43  111.  App.  255; 

^ Kelly  V.    Garrett,    1   Gilm.  649;  Litch  y.  Clinch,  13QI\\.A\();  Farrow 

Ellisv.  Cothran,  117  111.  458;  Harber  v.  Flatt,  61  111.  App.  118. 

V.  Cycle  Co.,  151  111.  84.  » Pettis  v.  Westlake,  3  Scam.  538; 

*  Chit.  PI.  495;  R.  R.  Co.  v.  Dodge,  2  Steph.  N.  P.  538;  Ayre's  v.  M'Con- 

72    111.    253;    Breen  v.  Sullivan,    5  net,  15  111.  230:  Ri/an  v.  Burger,  16 

Bradw.  449;  Cox  v.  Jordan,  86  111.  111.  28;  Mack  v.  Woodruff,  87  lU.  570; 


DEFENSES    TO   THE    ACTION    OF    ASSUilPSIT.  18o 

Unliquidated  damages,  arising  ex  contractu,  may  be  set  off 
in  an  action  of  assumpsit.'  This,  however,  can  not  be  done 
where  the  claim  for  unliquidated  damages  is  totally  uncon- 
nected with  the  plaintiff's  cause  of  action.'' 

A  separate  demand  can  not  be  set  off  against  a  joint  demand 
nor  a  joint  debt  against  a  separate  debt.'  Only  such  de- 
mands can  be  set  off  as  are  mutual  between  the  parties  to  the 
suit,  or  the  parties  in  interest,'  and  in  their  own  right.^  In  a 
suit  against  a  party  and  his  sureties,  a  debt  or  demand  due 
from  the  plaintiff  to  the  principal  defendant,  may  be  set  off.® 

Where  the  maker  of  a  note  seeks  to  set  up  as  a  defense,  in 
a  suit  by  an  indorsee  after  maturity,  a  cross-demand  which  the 
maker  had  against  the  payee  and  indorser  before  the  assign- 
ment, such  demand,  or  so  much  thereof  as  may  be  necessary, 
should  be  pleaded  specially,  under  the  statute,  and  not  as  a  set- 
off.' 

The  words  "claims  or  demands,"  as  used  in  the  ITth  section 
of  the  Illinois  Practice  Act  of  1827,  embraced  all  claims  or  de- 
mands arising  out  of  contracts,  whether  express  or  implied.* 
Section   29  of   the  act  now  in  force  is  substantially  the  same.'' 

Ellis  V.  Cothran,  \m\\.  ihS;  Dryer  HilUard    v.    Walker,    11    111.    644; 

Co.  V.  Livermore,  60   111.  App.    390;  Ryan  v.  Barger,  16  Hi.  28;  R.  R.  Co. 

Sprigg  v.  Oranneman,  36  111.  App.  v.  Neill,  16  111.  239;    Walker  v.  Cho- 

103.  vm,  16  111.    489;  Hinckley  v.    West, 

'  Bridge  Co.  v.  Shannon,  1  Gilm.  4  Gilm.  136;   Sergeant  v.  Kellogg,  5 

15;  Edwards  v.  Todd,  1  Scam.  462;  Gilm.  273;    Gregg  v.  James,  Breese, 

Nichols  V.  Ruckells,    3   Scam.   298;  143;   Lemon  v.  Stevenson,  36  111.  49; 

East  V.  Crow,  70  111.  91;  Underwood  Lemon  v.  Baldwin,  36111.  53;  Coats 

V.  Wolf,  131  111.  425.  V.  Prestoyi,  105  111.   470;  Scammon 

^Sergeant  v.  Kellogg,  5  Gilm.  273;  v.  Kimball,  92  U.  S.  362. 

Haivksv.  Layids,  S  Gilm.  221;  Harts-  ^  R.  R.  Co.  v.  Neill,    16  111.    269; 

horn  V.    Kinsman,    16  Bradw.    555;  Ayres   v.  McConnel,  15  111.  230;  see 

Clause    V.   Press   Co.,    118  111.  612;  3IcCord  v.  Crocker,  mm.  55Q. 

Dock  Co.  V.  Dunlap,  32  111.  207;  De  ^  Hivirod  v.    Baugh,   85   111.    435 

Forrest  v.  Oder,  42  111.  500;  Robin-  see  Waterman  on  Set-offs,  Sec.  237 

son  V.  Hibbs,  48  111.  408;  Dev.  Co.  v.  Graff  v.    Kahn,     18    Bradw.     485 

Clapp,  50  111.  App.  301.  Hayes  v.  Cooper,  14  Bradw.  490. 

3  Chit.  PI.    571;  Ryan   v.  Barger,  •»  Favorite  v.  Lord,  35  111.  142. 

16  111.  28;  Burgwin  V.  Babcock,  11  ^Nichols  v.  Ruckells,  d  Scam.  299; 

111.    28;  HilUard  v.  Walker,  11   111.  Edwards  v.  Todd,  1  Scam.  462. 

644.  9  Starr  &  Curtis  1791;   Rev.  Stat. 

*  Burgwin  v.  Babcock,  11  111.  28;  (1893),  1075;  Rev.  Stat.  (1895),  1159. 


186  DEFENSES    TO    THE    ACTION    OF    ASSUMPSIT. 

Mutual  demands  arising  out  of  the  same  subject-matter,  and 
capable  of  being  balanced  against  each  other,  may  be  adjusted 
in  one  action,  by  recoupment.  It  is  not  necessary  that  the  op- 
posing claims  should  be  of  the  same  character,  A  claim  orig- 
inating in  contract  may  be  set  up  against  one  founded  in  tort, 
if  the  counter  claims  arise  out  of  the  same  subject-matter,  and 
are  capable  of  adjustment  in  one  action.  The  defendant  in 
such  case  can  not,  however,  as  in  the  case  of  a  set-off,  recover 
any  excess  in  his  favor.  His  claim  is  used  in  mitigation  of 
damages  only.* 

The  materia]  difference  between  set-off  and  payment  as  a  de- 
fense is,  that  it  is  optional  with  the  defendant  to  plead  his  set- 
off in  defense  or  make  it  the  subject  of  an  independent  suit, 
while,  ordinarily,  at  least,  the  defense  of  payment  must  be  pre- 
sented and  litigated  in  the  suit  brought  to  recover  the  indebt- 
edness alleged  to  have  been  paid,  or  it  will  be  barred  and  lost.'^ 

It  has  been  held  in  Indiana  that  where,  in  a  suit  upon  a 
promissory  note  in  which  one  of  the  defendants  is  principal  and 
the  other  surety,  the  defendants  plead  as  a  set-off  a  debt  of  the 
plaintiff  to  the  principal,  the  plaintiff  may,  in  order  to  meet 
the  plea,  set  up  in  reply  any  debt  from  the  principal  to  the 
plaintiff,  or  to  any  former  holder  of  the  note,  which  is  a  legit- 
imate subject  of  set-off;  and  the  excess  only  of  the  defendant's 
claim  shall  go  in  bar  of  the  action.' 

An  amount  not  due,  claimed  as  a  set-off  to  a  former  suit,  and 
not  allowed,  may,  after  it  becomes  due,  be  recovered,*  A 
court  has  discretion  to  allow  items  of  set-off'  that  have  been 
withdrawn  to  be  again  filed. ^  A  judgment  recovered  after 
action  brought,  and  after  plea  pleaded,  can  not  be  set  off 
against  the  ])laintiff's  demand.'  A  defendant  can  set  off  a 
judgment  obtained  b}''  a  third  party  against  the  plaintiff  and 
assifi'ned  to  the  defendant  before  suit  brought.^ 

^Stoxv   V.    Yarimod,  14   111.   424;  ^ i2.  i2.  Co.  v.  Zeep,  22  111.  9. 

Tully  V.  Iron   Works,  115  III.  544;  ^  Irvin  v.  Wright,  1  Scam.  135, 

Clause  V.  Printing  Co.,  20  Bradw,  Waterman  on   Set-off,     93,  365 

113.  Ford    V.    Steioart,    19    John.    343 

'-  Litch  V.  Clinch,  136  111.  410.  Wright  v.    Cobleigh,    3  Foster   32 

3  Turner  v.  Simpson,  12  Ind.  413.  Wilson  v.    Reeves,   4    Sneed.     173 

^Crabtree  v.    Welles,   19  111.    55;  Young  v.  Young,  d2  III  App.  109. 
Cary  v.  Bancroft,  14  Pick.  315. 


DEFENSES    TO   THE    ACTION    OF    ASSUMPSIT.  1S7 

A  defendant  is  not  bound  to  set  off  his  debt  against  the 
plaintiff's  demand,  except  in  suits  before  a  justice  of  the  peace.' 
The  personal  debt  of  an  executor  or  administrator  can  not  be 
set  off  against  a  debt  due  to  the  estate.*  In  an  action  to  re- 
cover a  debt  accruing  to  an  administrator  after  the  death  of 
the  intestate,  the  defendant  can  not  set  off  a  debt  which  was 
owing  to  him  from  the  intestate  in  his  lifetime." 

An  administrator  is  not  bound  to  set  off  any  debt  or  de- 
mand against  a  claim  presented  by  a  creditor  against  the 
estate,  and  his  omission  to  do  so  will  not  bar  an  action  against 
such  creditor.*  A  note  payable  in  mason-work  is  not  assio-n- 
able  so  as  to  enable  the  assignee  to  plead  it  as  a  set-off  to  an 
action  against  him,  or  to  enable  him  to  institute  a  suit  thereon 
in  his  own  name.^ 

Where  the  plaintiff  brought  an  action  of  assumpsit  against 
the  defendants  to  recover  for  the  transportation  of  goods  from 
Buffalo  to  Chicago,  it  was  held  that  the  defendants  might 
give  in  evidence  under  the  general  issue,  and  a  notice,  either 
by  way  of  set-off  or  in  reduction  of  damages,  that  a  part  of 
the  goods  had  been  lost  or  destroyed  on  the  voyage  by  the 
carelessness  or  negligence  of  the  plaintiff."  The  defendant  can 
not  be  allowed  a  set-off,  nor  can  accounts  between  the  parties 
be  adjusted,  in  an  action  of  trover.'' 

"Where  bank-notes  were  introduced  by  way  of  set-off,  in  a 
suit  where  the  bank  was  plaintiff,  it  was  held  that  the  defend- 
ant must  prove  that  he  held  them  when  the  suit  was  com- 
menced.* A  banker  can  not  set  off  a  demand  he  holds  against 
the  presenter  of  a  check  on  such  banker.' 

A  claim  against  a  plaintiff  in  a  representative  capacity,  can 
not  be  set  off  in  a  suit  brought  in  his  individual  capacity.'"  It 
may  be  shown  that  the  plaintiff  in  a  suit  is  a  trustee  of  the 
payee  of  the  note  sued  on,  so  as  to  let  in  a  set-off  against  the 

^Morton  v.  Bailey,  1   Scam.    214;  ^Ransom  v.  Jones,  1  Scam,  291. 

see  Buckner  v.    Thompson,  11    111.  ^Edwards  v.  Todd,  1  Scam.  462. 

563.  ''Keaggy  v.  Hite,  12  111.  99. 

•2  Wisdom  V.  Becker,  52  111.  342.  ^Kelly  v.  Garrett,  1  Gilm.  169. 

^Neivhall  v.    Turney,   14  111.338;  ^ Broun Y.Leckie,A^l\\.4Sil;  Coats 

Harding  v.  Shepard,  107  111.  264.  v.  Preston,  105  111.  470. 

^Morton  v.  Bailey,  1  Scam.  214;  ^^Greww.  Burditt,  9  Pick.  265. 
Cook  V.  Lovell,  11  Iowa  81. 


188  DEFENSES    TO    THE    ACTION    OF    ASSUMPSIT. 

payee.*  In  a  suit  on  a  note  assigned  after  maturity,  a  set-off 
against  the  assignor  is  allowed."  But  the  demand  of  the  maker 
against  the  payee  should  in  such  case  be  pleaded  specially,  and 
not  as  a  set-off.'  In  an  action  by  a  surviving  dormant  partner, 
the  defendant  may  set  off  a  debt  due  from  the  partnership.* 
Courts  of  equity  will  sometimes  interfere  to  set  off  one  judg- 
ment against  another,  if  a  party  is  unable  to  enforce  his  judg- 
ment at  law.^ 

An  order  drawn  by  the  mayor  of  a  city  on  its  treasurer,  com- 
monly called  a  city  order,  is  a  proper  subject  of  set-off  in  a  suit 
brought  by  the  city  against  the  holder  to  recover  a  penalty  for 
a  breach  of  an  ordinance  of  the  city.®  A  set-off  is  not  allow- 
able in  a  proceeding  by  scire  facias  for  foreclosure,'  or  in  debt 
on  a  judgment.'  But  as  to  suits  on  judgments,  etc.,  in  Illinois, 
see  section  18,  above  referred  to,  of  the  Practice  Act  of  1872. 

The  defendant  may  plead  a  set-off  in  a  proceeding  by  distress 
for  rent.'  Where  suit  is  brought  by  a  party  in  his  own  name, 
for  a  debt  due  him,  in  trust  for  another,  and  the  nominal 
plaintiff  has  no  interest  in  the  cause  of  action,  it  seems  the 
better  rule  is  to  allow  the  defendant  to  set  off  so  much  of  any 
demand  held  by  him  against  the  beneficial  plaintiff,  as  will  sat- 
isf}^  the  plaintiff's  demand,  and  thus  lessen  litigation.'" 

Section  IT  of  the  limitation  act  gives  the  defendant  the  right 
to  plead  a  set-off  barred  by  the  statute  while  held  and  owned 
by  him,  to  any  action  the  cause  of  which  was  owned  by  the 
plaintiff,  before  such  set-off  was  barred;  and  the  defendant,  as 
to  such  set-off,  may  recover  judgment  against  the  plaintiff  for 
any  balance  found  to  be  due  him.'^ 

1  Hen}'?/ V.  S^coff,  3  Ind.  412.  ^Springfield  v,    HicJcox,  2  Gilm. 

^Driggs   v.    Rockwell,    11  Wend.  241. 

504:  Mead  v.  Gillett,  19  Wend.  397.  ■>  Woodbury  \.  Mcmlove,  14  III.  218; 

3  Favorite  v.  Lord,  35  111.  142.  Shetoe  v.  Ellis,  14  111.  75. 

4  Beach  v.  Hayward,  10  Ohio  455.  ^Rae  v.  Hurlbut,  17  111.  572. 
^Buckmaster  v.  Qrundy,  3  Gilm.  ^Rev.  Stat.  (1893),  922;  Rev.  Stat. 

626;  Wade  v.  Wade,  12  111.  89;  see  (1895),  977;  2  Starr  &  Curtis  1502;  see 

Phelps  V.  Reeder,  39  111.  172;  Doivns  Cox  v.  Jordan,  86  111.  560;  Crate  v. 

V.  Jackson.  33  111.  465;    Raleigh  v.  Kohlsaat,  44  111.  App.  460. 

Raleigh,  35  111.  512;  Derby  v.  Gage,  ^'^  Rothschild  v.  Brvscke,  131  111.  265 

38  111.  27;  Matson  v.  O'Berne,  25  111.  ''Rev.  Stat.  (1893),  941;  Rev.  Stat. 

App.  213.  (1895),  1003;  2  Starr  &  Curtis  1556; 


DEFENSES    TO   THE    ACTION    OF    ASSUMPSIT. 


189 


No  dismissal  after  plea  of  set-off. — Section  30  of  the  Prac- 
tice Act  provides  that  when  a  plea  or  notice  of  set  off  shall 
have  been  interposed,  the  plaintiff  shall  not  be  permitted  to 
dismiss  his  suit  without  the  consent  of  the  defendant,  or  leave 
of  the  court.' 

The  additional  Illinois  cases  noted  below  may  be  consulted 
on  the  subject  of  set-off." 

See  also  observations  under  the  form  of  notice  of  set-off 
under  general  issue,  No.  84,  page  151,  arite. 

No.  105.     Plea  of  set-off. 

(First  2^1  ea,  non  assumpsit,  as  ante,  No.  83;  second  plea  as  in  No.  S5,  ante, 
to  the  asterisk,  and  then  proceed:)  that  the  plaintiff  was  before  and  at  the 
time  of  the  commencement  of  this  suit,  and  still  is,  indebted  to  him,  the 
defendant,  in  the  sum  of dollars,  for  (liere  set  forth  the  matter  or  mat- 
ters of  set-off;  demands  such  as  tvould  be  recoverable  under  common  counts 
may  be  stated  as  in  such  counts — see  consolidated  common  counts,  ante.  No. 


see  Ste^re  v.  Broumell,  124  111.  27; 
Broicn  v.  3Iiller,  38  111.  App.  263; 
Sherman  v,  Slierman,  36  111.  App. 
482. 

'  Eev.  Stat.  (1893),  1075;  Rev.  Stat. 
(1895),  1159;  2  Starr  &  Curtis  1797;  see 
Savings  Inst.  v.  Brockschmidt,  72  111. 
370;  E.  St.  Louis  V.  Thomas,  9  Bradw. 
412;  Tel.  Co.  v.  Horasck,  9  Bradw. 
309;  Butler  v.  Cornell,  148  111.  276, 

'  Parkinson  v.  Trousdale,  3  Scam. 
367;  R.  R.  Co.  v.  Neill,  16  111.  269; 
Bull  V.  Ghnswold,  19  111.  631;  Mer- 
ritt  V,  Merritt,  20  111.  65:  Stoio  v, 
Yarwood,  20  111,  497;  Crabtree  v. 
Kile,  21  111,  180;  Morton  v.  McClure, 
22  111.  257;  Hinrichsen  v.  Reinbeck, 
27  111.  295;  Allen  v,  Breusing,  32  111. 
505;  Heckenkemper  v,  Dingivehrs, 
32  111.  538;  Willets  v.  Burgess,  34  111. 
494;  Peck  v.  Bligh,  37  111.  317;  Pack- 
icood  V.  Gridley,  39  111.  388;  Bradley 
y.  King,  44  111.  339;  King  v.  Bradley, 
44  111.  342;  Messmore  v.  Larson,  86 
111,  268;  Raymond  v.  Kerker,  81  111. 
381;  Stinson  v.  Gotdd,  74  111.  80; 
Zuckerman  v,  Solomon,  73  111,  130; 
Gaddis  v.  Leeson,  55  111.  522;  Clays 


V.  White,  65  111.  357;  Freiborth  v. 
Mann,  70  111.  523;  Lockhartv.  Wolf, 
82  111.  37;  Seavey  v.  Carrington,  4 
Bradw.  324;  Engs  v.  Matson,  11 
Bradw.  639;  Ellis  v.  Bank,  11  Bradw. 
275;  Hariris  v.  Pierce,  5  Bradw.  622; 
Buchanan  v.  Meisser,  105  111.  635; 
Howev.  Hickox,  106  111.  461;  Hozce 
v.Frazer,}!!  111.  192:  R.  R.  Co.  v, 
Ennor,  116  111.  67;  Dodge  v.  People, 
113  111.  496;  M.  Co.  v,  Kelly,  26  111. 
App.  394;  Wolf  v.  Beaird,  123  111. 
588;  M'ieland  v.  Oberne,  20  111.  App, 
119;  Bank  v.  Jones,  119  111.  409; 
Bank  V.  Banking  Co.,  114  111.487; 
Wenner  v.  Penny,  17  111.  App.  629; 
Aholzy.  Gultra,  114  111.  241;  Hayden 
V.  Bank,  29  111.  App.  464;  Ass.  Co. 
V,  Scammon,  133  111.  632;  Murtaugh 
V,  Colligan,  28  111.  App.  437;  Cald- 
well V.  Evans,  39  111.  App.  615;  Roths- 
child V.  Brusckki,  131  111.  270;  Jeffers 
V,  Jeffers,  139  111.  368;  Rulfv.  Rich. 
149  111.  436;  Morgan  v.  Campbell,  54 
111,  App.  242;  Harper  X.  M.  C.  Co., 
151  111,  84;  Snell  v.  Ball,  55  111.  App. 
501;  Leavitt  v.  Stern,  159  111.  526; 
Osgood  V.  Groseclose,  159  111.  511. 


190  DEFENSES   TO    THE   ACTION    OF    ASSUMPSIT. 

2G;  demands  by  virtue  of  specialties,  records  and  sjjecial  contracts  shotdd 
he  set  forth  specially: )  which  said  sum  {or  "  sums  ")  of  money  so  due  from  the 
plaintiff  to  the  defendant,  as  aforesaid,  exceeds  (or  "  exceed")  the  damages 
sustained  by  the  plaintiff  by  reason  of  the  non-performance  by  the  de- 
fendant of  the  several  supposed  promises  in  the  said  declaration  mentioned, 
and  out  of  which  said  sum  (or  "sums")  of  money  the  defendant  is  ready 
and  willing,  and  hereby  offers,  to  set  off  and  allow  to  the  plaintiff  the  full 
amount  of  the  said  damages.  And  this,  etc.  {conclude  with  a  verification, 
as  in  No.  S5,  ante). 

No.  106.    Replication  of  statute  of  limitations  to  a  plea  of  set-off. 
{Venue,  and  title  of  cause.) 

And  the  plaintiff  as  to  the  said  plea  of  the  defendant,  by  him above 

pleaded,  says  precludi  non,  because,  he  saj's,  that  the  said  several  supposed 
debts  and  causes  of  set-off  in  the  said  plea  mentioned,  did  not,  nor  did  any  or 
either  of  them,  arise  or  accrue  to  the  defendant  at  any  time  within  ^ue  years 
next  before  the  exhibiting  of  the  bill  of  the  plaintiff  in  this  suit,  in  manner 
and  form  as  the  defendant  has  above  in  his  said  plea  in  that  behalf  alleged. 
And  this  the  plaintiff  is  ready  to  verify;  wherefore  he  prays  judgment,  etc. 

E.  F.,  Att'y  for  Pl'ff. 

By  the  Illinois  Practice  Act,  the  defendant  is  required  to 
file  with  his  plea  or  notice  of  set-off  a  copy  of  the  instrument 
or  account  upon  which  he  intends  to  rely.'  It  is  to  be  ob- 
served that  the  18th  section  of  the  act  above  mentioned, 
provides  that  "  demands  upon  simple  contracts  may  be  set 
off  against  demands  upon  sealed  instruments,  judgments  or 
decrees." 

No.  107.    Replication  to  No.  105— nil  debet. 

{As  in  No.  86,  ante,  to  the  asterisk,  and  then  proceed:)  that  he,  the  plaint- 
iff, was  not  nor  is  indebted  to  the  defendant,  in  manner  and  form  as  the 
defendant  has  above  in  that  plea  alleged:  And  this  the  plaintiff  prays  may 
be  inquired  of  by  the  comitry,  etc. 

The  plaintiff  may  reply  nil  debet  to  a  plea  of  set-off  on  sim- 
ple contract,  but  if  the  set-off  is  on  a  specialty,  or  a  judgment 
or  other  matter  of  record,  he  should  reply  non  est  factum.,  mil 
tiel  record.,  or  payment,  etc.;^  or  to  a  plea  setting  up  both  a 
debt  of  record  and  a  debt  on  simple  contract,  he  may  reply  nul 
tiel  record  as  to  the  former,  and  nil  delet  as  to  the  latter,  in 

'Rev.  Stat.  (1893),  1075;  Rev.  Stat.  n    (^hit.    PI.    502;    Solmnons    v. 

(1895),  1159;  2  Starr  &  Curtis  1797;      Lyon,  1  East  369. 
Eddie  v.  Eddie,  61  111.  134. 


DEFENSES    TO   THE    ACTION    OF    ASSUMPSIT.  191 

the  same  replication; '  and  in  other  instances  the  replication 
may  contain  several  distinct  answers  to  different  parts  of  the 
plea.^  Any  matter  may  be  replied  which  a  defendant  in  an 
action  might  plead/  not  excepting  a  counter  demand/ 

PLEA    OF   KELEASE. 

A  release  may  be  given  in  evidence  under  non  assumpsit, 
or  pleaded  with  it;  ^  but  in  debt  on  a  specialty  it  must  be 
pleaded.®  Where  a  release  has  actually  been  given,  it  is  some- 
times advisable  to  plead  it,  in  order  to  narrow  the  evidence  on 
the  trial.  The  statement  of  the  subject-matter  of  the  release, 
etc.,  will  of  course  vary,  according  to  the  terms  of  the  instrument. 
This  defense,  like  various  others,  may  be  proved  under  the  gen- 
eral issue,  although  there  is  also  a  special  plea  in  which  the 
ground  of  defense  may  not  have  been  correctly  set  forth.''  In 
an  action  on  the  case  a  release  need  not  be  specially  pleaded.® 
If  one  maker  of  a  note  is  discharged  by  the  release  of  the  other 
maker,  the  former  alone  can  avail  of  such  defense.  Such  a 
defense  is  purely  personal.^ 

The  general  rule  is,  that  a  release  of  one  of  several  joint,  or 
joint  and  several,  promisors  or  obligors  discharges  all,  even 
though  such  release  specially  provides  that  it  shall  not  operate 
to  discharge  the  others."  But  in  the  case  of  Parmalee  v. 
Lawrence,  reported  in  vol.  44,  Illinois  Eeports,  p.  405,  the 
court,  after  observing  that  there  are  facts  in  that  case  which 
widely  distinguish  it  from  two  former  cases  in  which  the  court 
had  adhered  to  the  above  rule,"  says  that  "  the  weight  of  the 
modern  authorities  is  against  these  cases,  and  in  favor  of 
the  more  reasonable  rule  that  where  the  release  of  one  of  sev- 
eral obligors  shows  upon  its  face,  and  in  connection  with  the 

'1  Chit.  PI.  499,  562;  3  Chit.  PI.  ^2Green\.  Ev.,  Sec.  2B1;  Coal  Co. 

935;  Solomons  v.  Lyon,  1  East  369.  v.  Peterson,  45  111.  App.  507. 

n  Chit.  PL  499,  562;   3  Chit.  PI.  »  Thomas  v.  Mueller,  106  111.  36. 

1158,  1159;  Solomons  v.  Lyon,  1  East  '"  BenjamiuY.  McConnell,  4  Gilm. 

369.  536;  Rice\.    Webster,  18  111.  331;  5 

"3 1  Chit.  PI.  502.  Bac.  Abr.  702  g;  see  Mueller  v.  Ddb- 

*Reilly  v.  Rucker,  16  Ind.  303.  schuetz,  89  111.  176. 

B 1  Chit  PI.  418;  3  lb.  931  o.  "  Benjamin  v.  McConnell,  4  Gilm, 

» 1  Chit.  PI.  426.  536;  Rice  v.  Webster,  18  111.  331. 

'  1  Chit.  PI.  419. 


192  DEFENSES   TO   THE    ACTION    OF    ASSUMPSIT. 

circumstances  that  it  \yas  the  intention  of  the  parties  not  to 
release  the  co-obligors,  such  intention,  as  in  the  case  of  other 
written  contracts,  shall  be  carried  out,  and  to  that  end  the  in- 
strument shall  be  construed  as  a  covenant  not  to  sue; "  and  the 
court  quotes  from  Parsons  on  Contracts,  vol.  1,  p.  24,  that 
"  though  the  word  release  be  used,  even  under  seal,  yet  if  the 
parties  (the  instrument  being  considered  as  a  Avhole,  and  in 
connection  with  all  the  circumstances  of  the  case  and  the  rela- 
tions of  the  parties  )can  not  reasonably  be  supposed  to  have  in- 
tended a  release,  it  will  be  construed  as  only  an  agreement  not 
to  charge  the  person  or  party  to  whom  the  release  is  given, 
and  will  not  be  permitted  to  have  the  effect  of  a  technical  re- 
lease; for  a  general  covenant  not  to  sue  is  not  of  itself  a 
release  of  the  covenantee,  but  is  so  construed  by  the  law  to 
avoid  circuity  of  action;  and  a  covenant  not  to  sue  one  of  many 
who  are  jointly  indebted  does  not  discharge  one  who  is  a  joint 
debtor  to  the  covenantor,  nor  in  any  way  affect  his  obligation." ' 
This  case  was  in  chancery,  and  the  evidence  showed  a  scheme 
on  the  part  of  the  obligors  to  procure  a  release  to  one  of  them, 
for  the  purpose  of  escaping  the  full  payment  of  the  debt. 

In  the  case  above  mentioned,  the  court  also  says  that  the 
reason  why  a  release  of  one  of  several  obligors  discharges  all 
is  that  by  such  release  the  right  to  enforce  contribution  is  cut 
off,  and  that  if  that  right  is  reserv^ed,  the  release  should  be 
construed  as  a  simple  covenant  not  to  sue,  leaving  the  liability 
of  the  co-obligors  unimpaired.  "  The  reason  of  the  rule  fail- 
ing, the  rule  itself  should  cease,  the  more  especiall}'-  when  its 
application  would  work  injustice." 

One  of  several  joint  payees  or  obligees  may  receive  payment 
or  satisfaction,  and  discharge  the  entire  obligation,  and  the 
others  will  be  bound  by  his  acts  in  that  regard.  This  is  the 
general  rule.  But  to  give  that  effect  to  a  release  executed  by 
one  of  several  joint  obligees,  it  must  be  the  intention  of  the 
parties  to  the  release  that  it  shall  so  operate,  and  the  transaction 
must  be  free  from  all  fraud  upon  the  rights  of  those  of  the 
obligees  who  do  not  join  in  the  execution  of  the  release.*^ 

1  Moore  v.  Stamvood,  98  111.   605;      Clark  v.  Laumann,  52  111.  App.  637; 
Tliomason  v.  Clark,  31  111.  App.  404.       Lindley  on  Part.  135. 
Uns.  Co.  V.   Preble,  50  111.   332; 


DEFENSES    TO   THE    ACTION    OF    ASSUMPSIT.  193 

A  release  is  to  be  construed  according  to  the  particular  pur- 
pose for  which  it  Avas  made,  and  a  particular  recital  in  such  an 
instrument  will  restrain  its  general  words.'  A  release  under 
seal  may  be  pleaded  in  bar  of  a  demand  for  a  larger  sum  ihan 
was  paid  to  obtain  the  release;^  but  a  release  not  under  seal  is 
no  bar  in  such  case.' 

When  made  for  a  sufficient  consideration,  a  release  not  under 
seal  is  binding."  An  agreement  to  extend  the  time  of  payment 
of  a  debt,  without  an  agreement  not  to  sue,  does  not  har  a 
suit  for  the  debt  commenced  before  the  expiration  of  the  ex- 
tended time,^  but  such  agreement  is  pleadable  in  abatement  of 
the  suit.*     A  covenant  not  to  sue  is  in  equity  a  release." 

In  a  case  where  the  defendant,  a  railroad  company,  relied 
upon  a  release  under  seal  it  was  held  that  if  the  plaintiff  ex- 
ecuted the  release  under  the  belief,  induced  by  the  representa- 
tions, words  or  acts  of  the  defendant's  agents,  that  it  merely 
covered  a  month's  time,  or  wages,  such  release  would  not 
operate  as  a  bar;  and  that  whether  the  plaintiff  so  executed 
it  or  not  was  a  question  for  the  jury.* 

Where  one  of  several  persons  jointly  liable  is  sued  alone,  and 
a  recovery  is  had  against  him,  the  others  are  released;'  and 
such  former  recovery  may  be  given  in  evidence  under  the  gen- 
eral issue.'"  But  where  the  contract  is  several  as  well  as  joint, 
separate  actions  may  be  prosecuted  upon  it  against  the  several 
parties  liable,  until  satisfaction  is  obtained."     The  release  of, 

'  Seymour  V.  Butler,  8  Clark  (Iowa)  ■"  Jones  v.  Bank,  29  Conn.  25;  Blair 

304.  V.  Reed,  20  Texas  310. 

«  Kingsley  v.  Kingsley,  20  111.  203;  ^R.R.  Co.  v.  Welch,  52  111.  183. 

Com.  Dig.,  Release,  E,    2,3;    Flan-  HVann  y.  McNulty,  2  Gilm.   355; 

ningham  v.  Hogue,  59  111.  App.  315.  Tlioinpson  v.  Emmert,   15  111.    415; 

3  Curtis  V.   Martin,   20  111.    557;  Moore  v.  Rogers,  19  111,  347:  Mitch- 

Kingsley    v.   Kingsley,    20  111.    203;  ell  v.  Brewster,  28  111.  163;   Ward  v. 

Hayes  v.  Ins.  Co.,  125111.  626;  3Iar-  Johnson,  15  Mass.  148. 
fmv.  TFMfe,  40  111.  App.  281;  Ins.  ^'^  Wann    v.    McNulty,     2    Gilm. 

Co.  V.  Detwiler,   23  111.    App.    656;  355;  Lampton  v.  Jones,   5   Monroe 

Murphy  \.  Halleran,  50  111.  App.594.  236;  Yo^mg  v.  Bumivell,  2  Hill  580;. 

*  Benjamin  v.  J/cCon.ne/Z,  4  Gilm.  Young  v.  Black,  7  Craneh.  565. 
536;  i2.  iJ.  Co.  V.  iJead,  37  111.  484.  ^^  Moore   v.    Rogers,   19  lU.   347; 

^Pomroy  v.  Parmlee,  9  Iowa  140.  1  Chit.  PL  33;  1  GreenL    Ev.,  Sec. 

^  Archibald  V.  Argall,  53  III.   307;  239  a. 
see  1  Chit.  PI.  393. 
13 


19J: 


DEFENSES   TO    THE    ACTION  OF    ASSUMPSIT. 


or  receipt  of  full  satisfaction  from  one  joint  wrongdoer  dis- 
charges all.  Release  to,  or  the  receipt  of  money  from  one  who 
is  not  in  fact  liable  with  another  will  not  discharge  such 
other.' 

The  additional  Illinois  cases  noted  below  may  be  consulted 
on  the  subject  of  release  generall}^^  and  on  the  particular  sub- 
ject of  the  release  of  sureties.* 


No.  lOS.    Plea  of  release. 

{As  in  No.  85,  ante,  to  the  asterisk,  and  then  proceed:)  that  after  the  mak- 
ing of  the  several  promises  in  the  said  declaration  mentioned,  and  before. 


>  Wilson  V.  Reed,  3  Johns.  175; 
Turner  v.  Hitchcock,  20  Iowa  310; 
Pogel  V.  Meilke,  60  Wis.  248;  Wag- 
ner x.  Transit  Co.,  41  111.  App.  408; 
Oilpatrick  v.  Hunter,  24  Me.  18; 
Bronson  v.  Fitzhiigh,  1  Hill.  185; 
Vigeant  v.  Scidly,  35  111.  App.  46. 

•'Scott  V.  Bennett,  3  Gilm.  243; 
People  V.  Compiler,  14  111.  447;  Ryan 
V.  DunJap,  17  111.  40;  Lucas  v. 
iJorm,  20111.  165;  Whitev.  Walker, 
31  111.  422;  Iglehart  v.  Crane,  42 
111.  261;  Governor  v.  Lagow,  43  111. 
134;  Bradley  v.  King,  44  111.  339; 
Hubbard  v.  Jasinski,  46  111.  160; 
Simmons  v.  Johnson,  47  111.  350; 
Burch  V.  Hubbard,  48  111.  164;  Fahs 
V.  Roberts,  54111.  192;  Zirke  v.  Joliet, 
79  111.  334;  Packet  Co.  v.  Defries,  94 
111.  598;  Raymond  v.  Kerker.  2 
Bradw.  496;  R.  R.  Co.  v.  Bartlett, 
120  111.  607;  R.  R.  Co.  v.  Hurst,  25 
111.  App.  98;  Fey  v.  Watch  Co.,  32 
111.  App.  630. 

^Capps  V.  Sniith,  3  Scam.  177; 
Davis  V.  People,  1  Gilm.  409;  Wa- 
ters V.  Simpson,  2  Gilm.  570;  People 
V.  McHatton,  2  Gilm.  638;  People  v. 
McHatton,  2  Gilm.  731;  People  v. 
White,  11  111.  341;  PearZ  v.  Well- 
vians,  11  111.  352;  Gardner  v.  li^a^ 
soji,  13  111.  347;  Taylor  v.  Beck,  13 
111.  376;  PeopZe  v.  Blackford,  16  111. 
166;  Qreen  v.  PFardweM,  17  ill.  278; 


Gray  v.  McLean,  17  111.  404;  Barnett 
V.  S//iiY/i,  17  111.  565;  Pa^/Jie  v.  Web- 
ster, 19  111.  103;  Chapman  \.  Mc- 
Greu\20  111.  101;  Boyntonv.  Robb,  22 
111.  525;  Allbee  v.  Peopte,  22  111.  533; 
Cunningham  v.  WVenji,  23  111.  64; 
Lyle  V.  Morse,  24  III.  97;  Newlan  v. 
Harrington,  24  111.  206;  Warner  v. 
Campbell,  26  111.  282;  Proiw  v. 
Haggerty,  26  111.  469;  People  v. 
Osrde/i,  27  111.  27;  SeeZ?/  v.  Peojile,  27 
111.  173;  PeopZe  v.  Lott,  27  111.  215; 
Flynn  v.  Mudd,  27  111.  323;  Montague 
V.  Mitchell,  28  111.  481;  Preio  v. 
Drury,  31  111.  250;  Kennedy  x.  Evans, 
31  111.  258;  iifirtds  v.  Ligham,  31  111. 
400;  irard  v.  SZomZ,  32  111.  399; 
Woodford  x.  Doio,  34  111.  424;  Ram- 
sey X.  Perley,  34  111.  504;  Pirkins  v. 
Rudolph,  36  111.  306;  PeopZe  v.  Ad- 
mire, 39  111.  251;  Governor  v.  Pow- 
man,  44  111.  499;  Breese  x.  Schuler, 
48  111.  329;  Phares  x.  Barbour,  49  111. 
370;  Galbraith  x.  Fullerton,  53  111. 
126;  Foss  v.  City,  34  lU.  488;  Far- 
well  X.  Meyer,  35  111.  40;  Landis  v. 
People,  39  111.  79;  Governor  x. Lagow, 
43  111.  134;  Rogers  v.  Trustee,  46  111. 
428;  Boynton  x.  Phelps,  52  111.  210; 
Oxley  V,  Stoner,  54  111.  159;  Moore 
X.  Stamcood,  98  111.  606;  Po«er  v. 
Grosenback,  117  111.  407;  il//g.  Co.  v. 
Parmenter,  41  111.  App.  639;  Dupee 
V.  PZaA;e,  148  111.  453. 


DEFENSES    TO   THE   ACTION   OF   ASSUMPSIT.  195 

the  commencement  of  this  suit,  to  wit,  on,  etc.,  in,  etc.,  the  plaintiff,  by  his 
deed  bearing  date  of  that  day,  and  now  to  the  court  here  shown,  released 
to  the  defendant  the  said  several  promises,  and  all  demands  and  causes  of 
action  whatsoever  which  the  plaintiff  then  had  against  the  defendant,  or 
might  thereafter  have  or  allege  against  him,  by  reason  of  any  matter  or 
thing  previous  to  that  time;  as  by  the  said  deed,  reference  being  thereto 
had,  will  fully  appear:  And  this,  etc.  {conclude  with  a  verification,  as  in 
No.  85,  ante). 

In  debt  on  simple  contract,  saj  "  after  the  making  of  the 
several  contracts; "  in  debt  on  a  specialty,  or  in  covenant,  say, 
"  after  the  making  and  delivery  of  the  said  writing;"  and  in 
trespass,  say  "after  the  committing  of  the  several  trespasses" 
— in  case,  etc.,  "grievances;"  and  so  on,  throughout  the  plea, 
using  words  appropriate  to  the  particular  form  of  action. 

(In  any  pleading  where  it  is  meant  to  dispute  the  validity  of 
the  contract  or  promise  set  up  on  the  other  side,  it  is  proj^er  to 
refer  to  such  contract  or  promise  by  the  term  "  supposed^''  e.  g.^ 
"  the  said  supposed  promise,  etc.;  or  a  deed  or  other  instru- 
ment may  be  referred  to  as  "  the  said  writing;"  and  in  like 
manner  alleged  trespasses  or  grievances  may  be  referred  to  as 
"  the  said  supposed  trespasses,"  etc.) 

For  a  form  of  general  release,  at  full  length,  see  the  precedent 
of  a  plea  of  release  in  3  Chitty's  Pleading. 

No.  109.    Replication  to  No.  108 — non  est  factum. 

(vis  in  No.  86,  ante,  to  the  asterisk,  and  then  proceed:)  that  the  supposed 
writing  of  release  in  that  plea  mentioned  is  not  his  deed;  and  this  he  prays 
may  be  inquired  of  by  the  coxintry,  etc. 

The  replication  may  be  "  that  the  said  supposed  writing  of 
release  was  obtained  from  the  plaintiff  by  the  fraud  and  covin 
of  the  defendant,"  concluding  with  a  verification;  or  that  the 
writing  was  obtained  by  duress,  for  which  see  the  precedent  of 
a  plea  of  duress,  in  the  action  of  debt,  post. 

PLEA    OF    PAYMENT. 

Payment  may  be  given  in  evidence  under  the  general  issue 
in  assumpsit,  and  in  debt  on  simple  contract,'  but  in  debt 
on  a  specialty  it  must  be  pleaded."     Under  the  plea  of  pay- 

'  1  Chit.  PI.  417-422;   Gould's  PI.  *  1  Chit.  PI,  426;  Gould's  PI.  303. 

304-306;     Greenl.     Ev.,     Sec.     516; 
Crews  V.  Bleakley,  16  111.  21. 


196  DEFENSES    TO   THE    ACTION    OF   ASSUMPSIT. 

ment,  the  defendant  may,  by  proving  payment  in  full,  defeat 
a  recovery  altogether;  and  by  showing  partial  payment  he 
may  defeat  it  j^ro  tanto.' 

A  payment  to  a  nominal  plaintiff  is  not  a  satisfaction  of  the 
debt.'  Where  a  person  makes  a  payment  of  money,  he  is 
bound  to  know  whether  the  person  to  Avhom  the  payment  is 
made  is  authorized  to  receive  it.  If  he  who  has  paid  money 
could  have  successfully  resisted  a  suit  brought  by  the  person 
to  wiiom  he  has  paid  it,  then  such  payment  is  not  good;  and 
this  is  the  true  test  of  the  validity  of  a  payment.'  A  receipt 
in  full  of  all  demands  is  evidence  prima  facie  of  the  payment 
of  all  notes  and  claims  existing  at  the  time  the  receipt  is 
given.* 

Where  a  debtor  makes  a  payment  without  specifying  to 
what  debt  it  shall  be  applied,  the  creditor  has  the  right  to 
select  the  debt  on  which  he  will  give  the  credit.'  AVhere  notes 
of  third  persons  are  placed  in  the  hands  of  a  creditor  as  col- 
lateral security,  but  are  not  paid,  the  person  depositing  them 
can  claim  no  credit  for  the  amount  due  by  such  notes."  A 
payment  to  one  of  several  partners  is  a  pa3aiient  to  all,  un- 
less such  payment  to  the  one  is  strictly  forbidden  by  the 
others.' 

The  giving  of  a  bond  in  satisfaction  of  a  judgment  is  in  law 

1  Hays  V.  Smith,  3  Scam.  437;  196;  Dehner  v.  Boiling  Mill,  7 
Keyes  v.  Fuller,  9  Bradw,  528.  Bradw.  47;  Craig  v.  Miller,  103  111. 

2  Tuplet  V.    Scott,  13  111.  137,  605;    Hintz  v.    Calin,    39    111.    308; 
^  Holmes  V.  Field,  13  111.  434;  Peo-      Lowery  v.  Gear,  32  111.    383;    see  2 

pie  V.  Smith,  43  111.  230;  Dutclier  v.  Greenl.  Ev.,  Sec.  530,  533;  Jackson 

Beckicith,    45    111.    460;     People    v.  \.  Bailey,  \2  III.  \b^;  Sp)0ully.  Sani- 

Deams,Q21\\.  192;  Stover  V.  Mitchell,  uel,  4  Scam.    136;    Starr  v.   Rich- 

45  111.  213;    Toimer  v.  McClelland,  mond,  30  111.  376;  Miller  v.  3Iont- 

IIOIW.  5^2;  Lochenmeyer  v.  Fogarty,  gomery,  31  111.350;  Express  Co.\. 

113  111.  573.  Lesem,  39  111.  313;  Sprague  t.  Ha- 

*  3Iarstonv.  Wilcox,!  Scam.  370;  zenicinkle,  53  111.  419;  Hare  v.  Ste- 

Laxorence    v.    Lane,    4    Gilm.    354;  gall,  60  111.  380. 

Holmes  v.  Field,  12  111.  434;   Haral-  *  Prettyman  v.  Barnard,  37   111. 

sonv.  Bridges,  14  111.  37;   Capps  v.  106;  see  Wilhelmv,  Schmidt,  84  111. 

Graham,  14  111.  198;  Neal  v.  Hand-  183. 

ley,  116  111.  431.  ''  Gregg  v.  James,  Breese^43;  see 

^  McFarland   v.  Leivis,   2    Scam.  Granger  v.  McGilvra,   34  111.   154; 

347;   Bayley  v.   Wynkoop,  5  Gilm.  Kipp  v.  McChesney,  66  111.  460;  Ly- 

449;   Arnold  v.  Johnson,   1  Scam,  man  v.  Gedney,  114  111.  388. 


DEFENSES   TO   THE    ACTION    OF    ASSUMPSIT.  197 

a  payment  of  such  judgment,'  A  payment  in  good  faith  to 
an  agent  of  the  creditor,  authorized  to  receive  it,  is  a  payment 
to  the  creditor,  even  though  the  agent  misapplies  the  amount 
received." 

A  payment  may  be  in  goods  as  well  as  in  money.'  The  giv- 
ing of  a  new  note  is  a  payment  of  a  former  one,'  if  it  be  so 
understood  and  agreed  by  the  parties,*  but  in  the  absence  of 
anything  showing  a  contrary  intention  the  presumption  of  law 
will  be  that  the  new  note  is  not  a  payment  of  the  old  one,^ 

The  giving  of  a  note  for  a  debt  does  not  pay  or  discharge 
the  debt,  unless  it  be  agreed  that  it  shall  be  accepted  as  pay- 
ment and  satisfaction.'  The  giving  of  a  note  for  an  open 
account  I's,  prima  facie  a  payment  of  the  account,*  but  the  note 
when  due  ma}'"  be  surrendered  and  an  action  maintained  on  the 
original  cause  of  action.' 

An  attempted  payment  by  a  draft  or  check  which  is  dis- 
honored is  no  payment.'"  Under  the  plea  of  payment,  evidence 
of  set-off,  or  of  matter  in  recoupment,  is  admissible.'^ 

No.  110.    Plea  of  payment. 

(First  p7ea,  non  assumpsit,  as  ante,  No.  82;  second  plea  as  in  No.  85,  ante, 
to  the  asterisk,  and  then  proceed:)  that  after  the  making  of  the  several 

^  Cox  V.  Reed,  27  111.    483;   Rals-  v.  Iron  Wks.,  124:111.623;  Fairbanks 

ton  V.  Wood,  15  111.  159;   see  Wood-  v.  Bank,  132  111.  120. 
burnv.  Woodburn,  115  111.  427.  ^  Sav.  Bank   v.  Bormnan,  124  III. 

^Executors  v.  Brabham,  3    Ohio  200;  S.  &  G.  Co.  v.  Iron  Works,  124 

275;    Melvin  v.  7ns.  Co.,  80  111.  446.  111.  623;   Adams  v.    Squires,  61  III, 

3  Cannon  v.  Wood,  2  M.  &  W.  465;  App.  513;  Chisholm  v.  Williams,  128 

Kyle  V.  Green,  14  Ohio  497;  see  Ryan  111.  115. 

V.  Dtinlap,  17111.  40;  Stevens  v.  Brad-         '  Walsh  v.  Lennon,  98  111.  31;  Gage 

ley,  22  111.  244.  v.  Leicis,    68    111.    604;    Ralston    v, 

*Smalley  v.  Edey,  19  111.  207;  Ded-  Wood,  15  111.  171;  Smalley  v.  Edey, 

manv.  Williams,  1  Scam.  154;  Gran-  19  111.  207;  Hitt  v.  Sharer,  31  111.  9; 

ger  v.  McGilvra.  24  111.  154;  Miller  PaddockY.  Stout,  121   111.571;  Mfg! 

V.  Lumsden,   16  111.  161;  Hodgen  v,  Qo.  v.  Cheese  Co.,  59  111.  App.  573. 
Latham,  Sdm.U4:;Kai}pes  V.  Lum-  ^  Morrison  v.   Smith,  81   III.    221; 

ber  Co.,    1  Bradw.    280;     Gage    v.  Hoodless  v.  Reid,  112  111.  105. 
Lewis,  Q8  111.  604;    see  Wheelock  v.  ^  Ibid. 

Berkeley,  138  III.  153.  ^o  Matthews  v.  Cowan,  59  lU.  341; 

*  Yates  V.  Valentine,   71   111.  644;  Bank  v.  McCrea,  106  III.  281. 
Thompson  v,  Briggs,    28  N.    H.  40;  n  Hill  v.  Austin,  19  Ark.  230;   see 

Hill  V.  Morey,  49  N.  H.  268;  Jansen  Alien  v.  Breusing,  32  III.  505;  Heck- 

v,  Grimshaiv,  125111,  476;  S.  &  G.  Co.  enkemper  v,  Dingwehrs,  32  III.  538. 


198  DEFENSES   TO    THE    ACTION    OF   ASSUMPSIT. 

promises  in  the  said  declaration  mentioned,  and  before  the  commencement 
of  this  suit,  to  wit,  on,  etc.,  in,  etc.,  (*)  he  paid  to  the  plaintiff,  and  the 
plaintiff  accepted  from  him,  the  defendant,  divers  moneys,  amounting  to  a 
large  sum,  to  wit,  the  amount  of  all  the  sums  of  money  in  the  said  declara- 
tion mentioned,  in  full  satisfaction  and  discharge  of  the  said  several  prom- 
ises and  of  the  sums  of  money  last  aforesaid :  And  this,  etc.  (conclude 
with  a  verification,  as  in  No.  85,  ante). 

In  order  to  adapt  this  plea  to  an  action  of  debt  on  simple 
contract,  it  will  be  sufficient  to  substitute  the  Avord  contracts 
for  the  word  promises,  throughout  the  plea;  or  other  forms  of 
words,  appropriate  to  that  action,  may  be  used.  If  it  is  desired 
to  plead  a  partial  payment  only,  the  plea  is  to  be  limited 
accordingly  in  the  commencement;  and  if  a  payment  after 
action  brought  is  to  be  pleaded,  the  defendant  says  in  the  com- 
mencement that  the  plaintiff  "  ought  not  further  to  maintain 
his  aforesaid  action,"  etc.^ 

The  above  form,  substantially,  of  the  plea  of  payment  is  be- 
lieved to  be  the  one  generally  used,  but  it  seems  rather  to  be  a 
plea  of  accord  and  satisfaction  than  of  payment.  No  prece- 
dent of  a  plea  of  payment  in  assumpsit,  or  in  debt  on  simple 
contract,  is  found  in  Chitty  on  Pleading,  probably  for  the  rea- 
son that  it  was  not  usual  in  England  to  plead  this  defense  spe- 
cially in  those  actions.  It  is  submitted  that  a  plea  would  be 
sufficient  in  which  the  defendant  should  allege  that  "he  paid 
to  the  plaintiff  all  the  moneys  in  the  said  declaration  alleged 
to  be  due  to  him  from  the  defendant" — substituting  these 
words  for  those  between  the  asterisk  and  the  conclusion  in  the 
above  precedent. 

No.  111.    Replication  to  No.  110,  denying  the  payment. 

{As  in  No.  86,  ante,  to  the  asterisk,  and  then  proceed :)  that  the  defendant 
did  not  pay  to  the  plaintiff  the  moneys  in  the  said  second  plea  in  that  behalf 
mentioned,  in  full  satisfaction  and  discharge  of  the  several  promises  and 
sums  of  money  in  the  said  declaration  mentioned,  in  manner  and  form  as 
tlie  defendant  has  above  in  that  plea  alleged  :  And  this  the  plaintiff  prays 
may  be  inquired  of  by  the  country,  etc. 

(If  the  plea  should  be  that  the  defendant "  paid  to  the  plaintiff 
all  the  moneys  in  the  said  declaration  alleged  to  be  due  to  him 

'  See  forms,  2  Swan's  Pr.  702-706. 


DEFENSES    TO   THE   ACTION    OF   ASSUMPSIT.  199 

from  the  defendant,"  then  the  replication  would  be  simply 
"  that  the  defendant  did  not  pay  to  the  plaintiff  the  moneys  in 
the  said  second  plea  in  that  behalf  mentioned,  or  any  part 
thereof,  in  manner  and  form,"  etc,} 

PLEA    OF   ACCORD    AND    SATISFACTION. 

"Accord  is  a  satisfaction  agreed  upon  between  the  party 
injuring  and  the  party  injured,  which,  when  performed,  is  a 
bar  of  all  actions  upon  this  account."  '  In  order  to  make  a 
good  accord  it  is  essentia) :  1.  That  it  be  legal;  an  agree- 
ment to  drop  a  criminal  prosecution  as  a  satisfaction  for  an  as- 
sault and  imprisonment  is  void.*  2.  It  must  be  advantageous 
to  the  party  accepting;  hence,  restoring  to  the  plaintiff  his 
property,  of  which  the  defendant  has  wrongfully  dispossessed 
him,  will  not  be  any  consideration  to  support  a  promise  by  the 
plaintiff  not  to  sue  him  for  the  injury.'  3.  It  must  be  certain; 
hence,  an  agreement  that  the  defendant  shall  relinquish  the 
possession  of  a  house  in  satisfaction,  etc.,  is  not  valid,  unless  it 
is  also  agreed  at  what  time  it  shall  be  relinquished."  4.  The 
defendant  must  be  privy  to  the  contract;  if,  therefore,  the 
consideration  for  the  promise  not  to  sue  proceeds  from  another, 
the  defendant  is  a  stranger  to  the  agreement,  and  the  circum- 
stance that  the  promise  has  been  made  to  him  will  be  of  no 
avail.*    5.  The  accord  must  be  executed.* 

» 3  Blacks.  Com.  15;  Bacon's  Abr.,  Watts  (Pa.)  434;  Rusk  v.  Gray,  83 

Accord;  2  Greenl.  Ev.  28;  Ins.  Co.  Ind.  589. 

V.  Sfeue?is,  48  111.  32.  •'Yelv.    125;    4  Mod.  88;   Bird  w. 

2  Edgecombe  v.  Rodd,  5  East  294;  Caritat,  2  Johns.  342;  1  Bouv.  L.  D. 

see    2  Wils.  341;   Cro.  Eliz.  541;  1  189. 

Bouvier's  L.  D.  47;  Smith  v.  Grable,  '  Stra.    E.    592;    Clow  v.  Burst,  6 

14  Iowa    429;  Walon  v.  Kerhy,  99  Johns.  R.  37;  3  Mod.  302:  Daniels  v. 

Mass.  1;  Johnson  v.  Hunt,  81  Ky.  Hallenbeck,  19  Wend.  408. 

321.  *  Watkinson  v.  Inglesby,  5  Johns. 

3 1  Bouv.  L.   D.  47;    Fitch  v.  Sut-  R.  592;  Kromer  v.  Heim,  75  N.  Y. 

ton,   5  East  230;  Cumber  v.  Wane,  574;  Bragg  v.  Pierce,  53  Maine  65; 

1  Stra.  R.  426;  Heathcote  v.   Crook-  dishing    v.   Wyinan,  44    Me.   121; 

shank,   2    T.    R.    24;    Steinman    v.  Lynn  v.  Bruce,  16  Johns.  86;    Rtis- 

Magnes,  11  East.  390;  Logan  v.  .4ms-  sell  v.  Lytic,  6  Wend.  390;  Clark  v. 

tin,  1  Stew.  R.  476;  Blinn  v.  Ches-  Dinsmore,  5  N.  H.  136;  Bank  v.  De 

ter,  5  Day  R.  360;   Le  Page  v.  Mc-  Grauw,  23  Wend.  342;  see  Fitch  v. 

Crea,  1  Wend.  164;  Davis  v.  Noaks,  Haight,    4    Scam.    51;    McGehee  v. 

3  J.  J.  Marsh.  497;  Keeler  v.  Neal,  2  Shafer,  15  Texas  198. 


200  DEFENSES    TO   THE   ACTION    OF    ASSUMPSIT. 

Accord  with  satisfaction,  when  completed,  has  two  effects. 
It  is  a  payment  of  the  debt,  and  it  is  a  species  of  sale  of  the 
thino-  <riven  bv  the  debtor  to  the  creditor  in  satisfaction;  but 
it  differs  from  a  sale  in  this,  that  it  is  not  valid  until  the  de- 
livery of  the  article,  and  there  is  no  warranty  of  the  thing 
thus  sold,  except,  perhaps  as  to  the  title.* 

A  plea  of  accord  and  satisfaction  must  show  an  acceptance  of 
the  property  alleged  to  have  been  delivered  in  satisfaction  of 
the  demand.^  An  item  of  account  canvassed  and  disallowed 
at  a  settlement  of  accounts,  upon  which  settlement  a  note  is 
given,  may  afterward  be  made  the  foundation  of  an  action  or 
set-off,  in  the  absence  of  fraudulent  representations  or  practices 
at  the  settlement.^  It  seems  that  an  attachment  of  sufficient 
property  is,  like  an  execution  levied,  a  satisfaction  of  the  debt, 
and  may  be  so  pleaded.'  "When  a  party  relies  on  accord  and 
satisfaction  in  bar  in  an  action,  he  must  show  that  the  accord 
has  been  fully  executed.'  A  plea  of  accord  without  satisfac- 
tion is  not  a  good  plea  to  an  action  of  trespass."  The  accept- 
ance of  a  less  sum  in  money  than  is  actually  due  can  not  be  a 
satisfaction  and  will  not  operate  to  extinguish  the  whole  debt 
although  agreed  to  by  the  creditor.^ 

The  reason  of  this  rule  is  that  there  must  be  some  consider- 
ation for  the  relinquishment  of  the  excess  due  beyond  the  sum 
paid,  otherwise  the  agreement  is  nudum  jyactum.^  This  rule  has 
no  application,  however,  when  property  other  than  money  is 
taken  in  satisfaction "  or  when  there  is  an  honest  compromise 
of  unliquidated  or  disputed  demands.'"     An  agreement  to  ac- 

1 1  Bouv.  Law  Diet.  47,  and  cases  «  Goff  v.  Mulholland,  28  Mo.  397. 

there  cited;  Insurance  Co.  v.    Ste-  '  Brooks  v.  White,   2  Mete.  385; 

ve7is,  48  111.  33.  Hays  v.  Ins.  Co.,  135  111.  636. 

^  Drake  v.  Mitchell,   3  East  356;  «  Fitch    v.    Sutton,    5    East    333; 

Hearn  v.  Kiehl,   38  Penn.  St.  147;  Baileij  v.  Day,  36  Me.  88;    Parsons 

Fitch   V.  Haiglit,  4  Scam.  51;  Sim-  on  Contracts  618;    Hays  v.  Ins.  Co., 

mons  V.  Clark,  56111.  96;   Bank  v.  De  135  111.  636;  Martin  v.  White,  40  III. 

G^mmw,  S3  Wend.  343;  Watkinsonv.  App.  381. 

Inglesby,  5  Johns.  393.  «  Hazjs  v,   Ins.  Co.,  135  111.    636; 

3  Bright  v.  Coffman,  15  Ind.  371.  Neal  v,  Handley,   116  111.  418;    but 

4  Yottrt  V.    Hojykins,   34  111.  336;  see  Morrill  v.  Baggott,  157  111.  340. 
Wintemitz'Api)eal,mVe\\n.^i.^^Q.  ^'^  Hays  v.  Ins.    Co.,    135  111.636; 

i  McGehee    v.  Sliafer ,  15  Tex.  198:      Ins.  Co.  v.  Detu-iler,  33  111.  App.  656; 
Cushing  v.  Wyman,  44  Me.  131;  see      Rosenmuller  v.  Lainpe,  89  111.  313. 
Fitch  V.  Ilaight,  4  Scam.  51. 


DEFENSES   TO   THE   ACTION    OF    ASSUMPSIT.  201 

cept  a  less  sum  secured  for  a  larger  sum  unsecured,  or  differ- 
ently secured,  is  held  to  be  a  good  accord  and  satisfaction.' 
An  accord  and  satisfaction  with  one  of  several  joint  tort  feas- 
ors is  a  bar  to  an  action  against  the  others.*  And  a  partial  sat- 
isfaction by  one  of  several  wrong-doers  is  a  satisfaction  ^ro 
tanto  as  to  all.' 

A  money  debt  may  be  satisfied  by  payment  in  property,  if 
so  accepted,  whatever  its  value  may  be.* 

No.  112.    Plea  of  accord  and  satisfaction— Delivery   and   acceptance  of 

goods. 

(As  in  No.SS,  ante,  to  the  asterisk,  and  then  proceed:)  that  after  the  mak- 
ing of  the  several  promises  in  the  said  declaration  mentioned,  and  before 
the  commencement  of  this  suit,  to  wit,  on,  etc.,  in,  etc.,  he  delivered  to  the 
plaintiff,  and  the  plaintiff  accepted  of  him,  the  defendant,  two  thousand 
bushels  of  loheat,  of  the  value  of dollars,  in  full  satisfaction  and  dis- 
charge of  the  said  several  promises  and  of  all  the  sums  of  money  in  the 
said  declaration  mentioned  :  And  this,  etc.  {conclude  with  a  verification,  as 
in  No.  S5,  ante.) 

Some  of  the  precedents  of  this  plea  omit  the  statement  as  to 
the  value  of  the  property  delivered.*  It  is  not  required  that 
the  chattels  delivered  should  be  of  value  equal  to  the  debt,  for, 
as  it  is  said,  "  the  party  receiving  them  is  always  taken  to  be 
the  best  judge  of  that,  in  matters  of  uncertain  value.**  See  the 
observations  under  forms  Xo.  108  and  No.  110,  a?ite,  as  to 
adopting  the  plea  to  the  action  of  debt  on  simple  contract,  or 
other  action.  The  defense  of  accord  and  satisfaction  may  be 
given  in  evidence  under  the  general  issue  in  assumpsit,  debt 
on  simple  contract,'  and  case,'  but  in  debt  on  a  specialty,'*  and 
in  trespass,  it  must  be  pleaded.'" 

J  Post  V.  Bank,  138  111.  559;  1  Am.  'gteph.  pi.  218;  2  Swan's  Pr.  604; 

&  Eng.  Ency.  Law,  101.  see  3  Chit.  PI.  924. 

^  City  V.   Babcock,   143    111.  358;  *  Andreiv  v.  Boughey,  Dyer  72  a; 

Wagner  v.  Transit  Co.,  41  111.  App.  Tliompson  v.  Percival,  5  B.  &  Ad. 

408;  Ooss  v.  Ellison,  136  Mass.  503.  932;  3  N.  &  M.  167,  S.  C. 

3  Bank  v.  Curtis,  37  Barb.  317.  '  1  Chit.  PI.  417,  421,  422;  Gould's 

^Blinnv.  Chester,  5  Day  360;  Bull  PI.  304-307. 
V.  Bull,  43  Conn.  455;  Reid  v.  Bart-  n  Chit.  PI.  432;  Gould's  PI.  308. 

lett,  19  Pick.  273;  Bliss  v.  Shivarts,  H  Chit.  PI.  426. 

64  Barb.    215;  Ridlon  v.    Davi,s,   51  '» 1  Chit.  PI.  441;  Kenyon  v.  Suth- 

Vt.  457;  Neal  v.  Handley,  116  111.  418.  erland,  3  Gilm.  99. 


202  DEFENSES   TO    THE  ACTION    OF   ASSUMPSIT. 

No.  113.  Replication  to  No.  112,  denying  delivery  of  property,  etc. 
(  As  in  No.  86,  ante,  to  the  asterisk,  and  then  proceed:)  that  the  defend- 
ant did  not  deliver  to  the  plaintiff  the  said  two  thousand  bushels  of  wheat 
in  the  said  second  plea  mentioned,  in  full  satisfaction  and  discharge  of  the 
several  promises  and  sums  of  money  in  the  said  declaration  mentioned,  in 
manner  and  form  as  the  defendant  has  above  in  that  plea  alleged:  And  this 
the  plaintiff  prays  may  be  inquired  of  by  the  country,  etc. 

No.  lU.    Plea  of  accord  and  satisfaction— Account  stated,  and  delivery  of 
defendant's  promissory  note  in  satisfaction. 

{First  plea,  non  assumpsit,  as  ante.  No.  82.)    And  for  a  further  plea  in 

this  behalf,  as  to  the  sum  of  dollars,  {the  sum  for  which  the  note  was 

given,)  parcel  of  the  several  sums  of  money  in  the  said  declaration  men- 
tioned, the  defendant  says  that  the  plaintiff  ought  not  to  have  his  aforesaid  ac- 
tion against  him,  the  defendant,  because  he  says,  that  after  the  making  of  the 
several  promises  in  the  said  declaration  mentioned,  and  before  the  commence- 
ment of  this  suit,  to  wit,  on,  etc.,  in,  etc.,  an  account  was  stated  between 
the  plaintiff  and  the  defendant,  concerning  the  said  several  sums  of  money 
in  the  said  declaration  mentioned,  and  upon  that  accounting  the  defendant 
was  then  and  there  found  to  be  indebted  to  the  plaintiff  in  the  said  sum  of 

dollars;  for  which  said  sum  of  money  the  defendant  then  and  there 

made,  and  delivered  to  the  plaintiff,  his  promissory  note,  bearing  date  of 
that  day,  whereby  he,  the  defendant,  promised  to  pay  that  sura  of  money 

to  the  plaintiff,  or  his  order, after  the  date  of  the  said  note;  and 

the  plaintiff  then  and  there  accepted  the  said  note  for  and  on  account  of 
the  said  sum  of dollars,  parcel,  etc. ;  and  by  reason  thereof  the  defend- 
ant then  and  there  became,  and  still  is,  liable  to  pay  that  sum  of  money, 
according  to  the  tenor  and  effect  of  the  said  note.  And  this,  etc.  {conclude 
with  a  verification,  as  in  No.  85,  ante.) 

In  general  the  payment  of  a  smaller  sum  can  not  be  pleaded 
as  a  satisfaction  of  a  larger.  The  plea  should  therefore  be 
pleaded  only  to  the  amount  of  the  sum  mentioned  in  the  note 
or  bill,  as  in  the  above  form,  or  else  it  should  aver  that  the 
defendant  was  not  indebted  to  the  plaintiff  more  than  that 
sura.'  See  a  precedent  in  the  latter  form,  3  Chit.  PI.,  5th  Am. 
Ed.  926.^ 

Where  the  defendant,  in  his  plea,  alleged  that  on  stating  a 
balance  of  accounts  he  delivered  certain  negotiable  paper  to 
one  C.  on  account  and  in  behalf  of  the  plaintiffs,  but  did  not 
aver  that  C.  was  the  agent  of  the  plaintiffs,  nor  that  the  paper 

13  Chit.  PI.,  11th  Am.  Ed.,  926  t.  ^See  Thomas  v.  Heathorn,  2  B.  & 

Cres.  477. 


PEFENSES    TO    THE    ACTION    OF    ASSUMPSIT.  203 

was  accepted  in  full  satisfaction  and  discharge  of  the  debt  due 
to  the  plaintiffs,  the  plea  was  held  bad.' 

In  3  Chitty  on  Pleading,  p.  1157,  note,  it  is  said  that  "  where 
a  note  or  bill  has  in  fact  been  given  in  payment,  and  is  so 
pleaded,  the  replication  must  not  traverse  the  delivery  or  ac- 
ceptance in  satisfaction,  but  must  state  the  dishonor  of  such 
bill  when  the  same  became  due,  and  if  the  defendant  were 
drawer  or  indorser,  should  aver  that  he  had  notice  thereof." 
See  the  precedent  there  given. 

The  replication  s,ovi\et\VL\(i&  protests  the  delivery  of  the  goods, 
etc.,  and  traverses  the  acceptance,  and  this  is  proper  where 
there  has  in  fact  been  a  delivery,  but  no  acceptance  in  satis- 
faction." The  commencement  of  a  replication  with  a  protes- 
tation is  as  follows : 

"And  the  plaintiff,  as  to  the  plea  of  the  defendant  by  him  secondly  above 
pleaded,  says  that  he,  the  plaintiff,  ouglit  not,  by  reason  of  anything  in 
that  plea  alleged,  to  be  barred  from  having  his  aforesaid  action,  because 
protesting  that  the  defendant  did  not  deliver  to  him,  the  plaintiff,  the /?orses 
in  the  said  second  plea  mentioned,  as  the  defendant  has  above  in  that  plea 
alleged;  for  replication,  nevertheless,  in  tliis  behalf,  the  plaintiff  says,"  etc. 

The  only  use  or  effect  of  a  protestation  in  a  pleading  is  to 
enable  the  party  making  it — in  case  he  succeeds  in  the  point 
to  be  tried — to  dispute  in  any  other  action  the  matter  so  pro- 
tested.* 

PLEA    OF    ARBITRAMENT   AND    AWARD. 

Arbitrament  and  award  may  be  given  in  evidence  under  the 
general  issue;  but  it  is  frequently  advisable  to  plead  it,  in  order 
to  compel  the  plaintiff  in  his  replication  to  take  issue  on  some 
particular  part  of  the  plea,  and  thereby  admit  the  residue.  In 
debt  on  a  specialty,  covenant  or  trespass  it  must  be  pleaded 
specially.* 

^Bird  V.    Caritat,  2  Johns.  334;  PI.  n.;  Haldippx.  Of?m?/,  2  Samid. 

see  Kearslak-e  v.  Morgan,  5  Term  R.  103  a,  n. ;  1  Chit.  PI.  533. 

513.  •'Bac.  Abr.,  Arbit.,  G.;  3  Chit.  PI. 

23  Chit.  PI.  1156,  note.  927,  note;  1   Chit.   PI.  418,  426,  428, 

ssteph.  PI.,   218,  note;  Com.  Dig.  441. 


204  DEFENSES   TO   THE    ACTION    OF   ASSUMPSIT. 

No.  115.    Plea  of  arbitrament  and  aioard. 

{As  in  No.  85,  ante,  to  the  asterisk,  and  then  proceed ;)  that  after  the  mak- 
ing of  the  several  promises  in  the  said  declaration  mentioned,  and  before 
the  commencement  of  this  suit,  to  wit,  on,  etc.,  in,  etc.,  the  plaintiff  and 
the  defendant  submitted  themselves,  (/^ere  state  the  mode  of  submission, 
which  may  have  been  thus:)  by  two  mutual  bonds  of  arbitration,  bearing 
date  of  that  day,  to  the  arbitration,  and  engaged  in  all  things  to  abide  and 
perform  the  award  and  arbitrament  of  G.  H.  and  L.  M. ,  arbitrators  indif- 
ferently chosen  as  well  on  the  part  of  the  plaintiff  as  of  the  defendant,  to 
arbitrate  and  award  concerning  all  actions,  causes  of  action,  controversies 
and  demands  whatsoever  theretofore  or  then  had  or  existing  between  the 
said  parties,  or  by  either  of  them  against  the  other,  so  as  the  said  award 
should  be  made  by  the  said  arbitrators,  under  their  hands,  and  ready  to  be 
delivered  to  the  said  parties  in  difference,  or  such  of  them  as  should  desire 
the  same,  on  or  before,  etc.,  then  next :  {If  the  time  for  niaJcing  the  award 
u'as  enlarged,  here  aver  the  enlargement,  by  consent,  etc.)  And  the  defend- 
ant further  says,  that  the  said  arbitrators,  before  the  expiration  of  the  said 
time  limited  for  making  their  award,  to  wit,  on,  etc.,  in,  etc.,  took  upon 
themselves  the  burden  of  the  said  ai'bitration,  and  having  duly  examined 
and  considered  the  subject-matter  in  dispute  between  the  plaintiff  and  the 
defendant,  they,  the  said  arbitrators,  did  make  their  award  in  writmg  under 
their  hands,  concerning  the  premises,  and  concerning  the  said  promises  in 
the  said  declaration  mentioned,  ready  to  be  delivered  to  the  said  parties  in 
difference,  and  did  thereby  then  and  there  award  that,  etc.,  {he7'e  set  forih 
th^aivard  ;)  as  by  the  said  award,  bearing  date,  etc,  reference  being  there- 
unto had,  will  more  fully  appear.  And  this  the  defendant  is  ready  to  ver- 
ify; wherefore  he  prays  judgment,  etc. 

The  above  form  can  be  varied  to  correspond  with  the  arbi- 
tration-bond— or  the  submission,  written  or  verbal — the  facts 
in  relation  to  the  submission  and  award,  and  the  form  of  action.' 

No.  116.    Replication  to  plea  of  arbitrament  denying  the  award. 

{Venue,  and  title  of  cause.) 

And  the  plaintiff  as  to  the  said  plea  of  the  defendant  by  him above 

pleaded,  says  that  the  plaintiff,  by  reason  of  anything  by  the  defendant  in 
that  plea  alleged,  ought  not  to  be  barred  from  having  and  maintaining  his 
aforesaid  action  thereof  against  the  defendant  (or  precludi  non),  because  he 
says,  that  the  said  arbitrators  did  not  make  any  such  award  of  and  concern- 
ing the  premises,  in  manner  and  form  as  the  defendant  has  above  in  his  plea 
in  that  behalf  alleged.  And  this  the  plaintiff  prays  may  be  inquired  of  by 
the  country,  etc. 

E.  F.,  Att'y  for  Pl'ff. 

>  See  precedent,  3  Chit.  PI.  937. 


DEFENSES   TO   THE   ACTION    OF   ASSUMPSIT.  205 

No.  117.    Replication  to  a  plea  of  award. 

{Venue,  and  title  of  cause.) 

And  the  plaintiff  as  to  the  said  plea  of  the  defendant,  by  him above 

pleaded,  says,  predudi  non,  because  he  says  that  the  said  causes  of  action 
above  declared  on  were  not  included  in  the  said  submission  to  arbitration, 
and  were  not  in  differe7ice  between  the  parties  thereto  at  the  time;  and  this 
he  is  ready  to  verify,  etc.,  wherefore  he  prays  judgment,  etc. 

E.  F.,  Att'y  for  Prflf. 

No.  118.    Rejoinder  to  a  replication  to  a  plea  of  aicard. 

{Venue,  and  title  of  cause.) 

And  the  defendant  as  to  the  said  replication  of  the  plaintiff,  to  the 

plea  of  the  defendant,  says  actio  non,  because  he  says  that  the  matters 
above  declared  on  were  included  in  the  said  submissioix  to  arbitration,  and 
were  in  difference  between  the  parties  thereto  at  the  time;  and  of  this  he 
puts  himself  upon  the  country,  etc. 

G.  H.,  Att'y  for  Deft. 

See  chapter  entitled  Arbitration  and  A. ward,  post. 

PLEA   OF   FORMER   ADJUDICATION. 

Where  the  subject-matter  of  a  cause  of  action  has  been  once 
determined  by  the  final  judgment  or  decree  of  a  court  of  com- 
petent jurisdiction,  such  judgment  or  decree  will  be  conclusive 
between  the  parties  thereto  and  will  be  a  bar  to  any  other 
proceeding  on  the  same  cause  of  action.'  But  it  must  appear, 
either  upon  the  face  of  the  record,  or  be  shown  by  extrinsic 
evidence,  that  the  precise  question  was  raised  and  determined 
in  the  former  suit.  If  there  be  any  uncertainty  on  this  head 
in  the  record,  the  whole  subject-matter  of  the  record  will  be 
open  to  a  new  contention,  unless  this  uncertainty  be  removed 
by  extrinsic  evidence  showing  the  precise  point  involved  and 
decided  in  the  former  proceeding.* 

^  Jones    V.    Smith,    13    111.    301;  Ticker,  14  Bradw.  558;  Brackett  v. 

Abrams  v.  Lee,  14  111.  167;  Zimmer-  People,   115  111.  29;  Kilgour  v.  Dr. 

man    v.    Ziinmei-man,    15    111.    84;  Corn.,  Ill  III.  342;  Stickney  v.  Gondij, 

Crosby  v.  Glpps,  16  111.  352;  Vanlan-  132  111.  213;  Moore  v.  Williams^  132 

dingliam  v.  Ryan,  17  111.  25;  R.  R.  111.  589;  Kit^on  v.  Farivell,  182  111. 

Co.  v.  Allen,  39  111.  205;  Kreuchi  v.  327;  Shunick  v.  Thomson,  25111.  App. 

Dehler,  50  111.  176;  Oetgen  v.  Ross,  619;  City  v.   Cameron,   120  111.  457; 

54  111.    79;   Hawley  v.  Simons,  102  Webber  v.  Mackey,  31  111.  App.  369; 

111.  115;  Cooper  v.  Corbin,  105  111.  Riverside  v.  Townsend,  120  111.  13. 
224;  Noyes  v.  Kern,  94  111.  524;  Pe-         ^Palmer  v.  Sanger,  143  111.  34. 
terson  v.  AW.  80  111.  25;  Miller  v. 


206  DEFENSES    TO   THE    ACTION    OF   ASSUMPSIT. 

A  former  adjudication  by  a  court  of  competent  jurisdiction 
is  not  only  final  as  to  the  matter  actually  determined,  but  as 
to  every  other  matter  which  the  parties  were  bound  to  litigate 
and  bring  to  a  decision  as  an  incident  to,  or  essentially  con- 
nected with,  the  subject-matter  in  litigation.' 

The  rule,  however,  can  not  be  invoked  where  there  has  been 
fraud  in  obtaining  such  adjudication  if  the  party  defrauded  is 
not  esto})ped  by  want  of  diligence."  Where  some  controlling 
fact  or  matter  material  to  the  determination  of  two  causes  of 
action  has  been  adjudicated  in  a  former  proceeding  in  a  court  of 
competent  jurisdiction,  and  the  same  fact  or  matter  is  again 
at  issue  between  the  same  parties,  the  adjudication  of  the  fact 
or  matter  in  the  first  suit,  if  properly  presented,  will  be  con- 
clusive upon  the  same  question  in  the  latter  suit,  irrespective 
of  whether  the  cause  of  action  is  the  same  in  both  suits  or 
not.' 

Parol  evidence  may  be  admitted  to  show  what  was  adjudi- 
cated upon  in  a  former  suit,  but  not  what  the  adjudication 
was.^  A  former  adjudication  is  sometimes  binding  upon  per- 
sons who  are  not  parties  to  the  record.  One  in  whose  behalf 
or  under  whose  direction  a  suit  is  prosecuted  or  defended,  will 
be  barred  by  the  judgment  or  decree  rendered  in  it,  and  parol 
evidence  will  be  admitted  to  show  who  is  the  real  party  in  in- 
terest, and  that  such  person  conducted  the  litigation  in  the 
name  of  another  person.^ 

A  judgment  on  demurrer  for  defect  in  the  pleadings,  or  on 
a  non-suit  for  want  of  proof  or  for  a  variance,  or  on  a  non-suit 
by  agreement  after  trial  on  the  merits,  will  not  be  a  bar  to  an- 
other action  for  the  same  cause;  *  and  if  such  a  judgment  is 

1  R.   R.  Co.  V,  Cheshire,  59  N.  H.  ^Smithy.  Express  Co.,  135  111.  279; 
4,09;  Windettv.Im.  Co.,  211\\.ATpp.  Cheney    v.    Patton,    134    111.    422; 
68;  Harmon  \.  Auditor,  123111.  133;  Harding  v.  Fuller,  141  111.  308. 
Bennett  v.  Mining  Co.,  119  111.  14.  ^Vanlandingham\.Ryan,\l  111.25; 

2  ShinUer  v.  Letcher,  47  111.  216.  Smalley  v.  Edey.  19  111.  207;  Howes 
^Wright  v.  Griffey,   147  111.  496;      v.  Austin,  35  111.   396;  Miller \.  Mc- 

Leopold  V.  City,  150  111.  568.  Manis,  51  111.  126;  Briscoe  v.  Power, 

*  Zimmerman  v.   Zimmerman,  15  85  111.   420;  Davis  v.  Kennedy,  105 

111.  84;    Shepard  v.    Butterfleld,  41  111.  300;  Beatley  v.  CBryan,  111  111. 

111.  76;  Leopold  v.  City,  150  111.  568;  53;  Brackett  v.  People,  115  111.  29. 
Wright  v.  'Griffey,  147  111.  496. 


DEFENSES    TO   THE    ACTION    OF    ASSUMPSIT.  207 

pleaded  in  bar,  the  plaintiff  may  reply  that  the  same  was  not 
obtained  on  the  merits.'  It  is  not  to  be  understood,  however, 
that  a  judgment  on  a  demurrer  is  in  no  case  a  bar.'' 

Where  the  promise  of  several  is  joint,  and  not  several,  a 
judgment  against  one  or  more  is  a  bar  to  another  action  on  the 
same  contract,  whether  against  the  same  or  other  parties;  ^ 
thus  a  judgment  against  one  member,  for  a  debt  due  from  the 
partnership,  is  a  bar  to  a  recovery  against  the  other  members.'* 
A  judgment  in  favor  of  the  maker  of  the  note,  on  its  merits,  in 
an  action  by  an  assignee,  is  a  bar  to  a  subsequent  action  brought 
by  the  payee  against  the  maker.  The  payee  having,  by  his  in- 
dorsement, authorized  his  assignee  to  sue  upon  the  note,  is 
bound  by  the  judgment  against  the  assignee,  upon  the  merits.^ 

A  plaintiff  who  recovers  in  replevin  against  one  person,  and 
obtains  a  return  of  the  goods,  can  not  afterwards  sue  the  same 
and  another  person  in  trespass  for  the  same  taking;  and  it 
makes  no  difference  whether  the  damages  awarded  in  the  re- 
plevin suit  have  been  paid  or  not.' 

It  is  said  that  "  if  the  damages  recovered  were  for  the  de- 
terioration in  the  value  of  the  plaintiff's  property"  (caused  by 
a  nuisance),  "  such  recovery  would  be  a  bar  to  any  further  pros- 
ecution for  the  same  cause;  but  if  they  were  for  annoj^ance 
merely,  and  for  rendering  the  air  unwholesome,  then  a  similar 
recovery  might  be  had  at  every  term  of  the  court,"  so  long  as 
the  nuisance  should  continue.' 

The  owner  of  property  alleged  to  have  been  injured  on  a 
railroad,  through  neglect  of  duty  on  the  part  of  the  engine- 
driver,  may  elect  to  sue  either  the  driver  or  the  railroad  com- 
pany; but  it  is  said,  when  a  jury  has  found,  in  an  action  against 
the  company,  that  there  was  no  negligence,  it  is  a  bar  to  a  re- 
covery against  the  servant.*  Where,  however,  a  person  had 
sued  a  city,  to  recover  damages  for  injuries  received  by  reason 

>  1  Chit.  PI.  179.  Benjamin  v.  AfcConnell,  4  Gilm.  536; 

^Vanlandingham  \.Ryan,\l  111.25;  Mitchell  v.  Breivster,  28  111.  163;  Jan- 

Nispel  V.  La  Parle,  74  111.  306.  sen  v.  Grimshato,  125  111.  468. 

^  Moore    v.    Rogers,    19    111.    347;  ^  Leslie  v.  Bonfe,  ISO  III.  4d8. 

Thompson  v.  Emmert,   15   111.   415;  ^Karr  v.  Barstoic,  24  III.  oSO. 

Chit.  Bills,  563,  564.  "i  R.  R.  Co.  v.  Grabill,  50  111.  241. 

*  Wayin  v.  McNidty,  2  Gilm.  355;  »R.R.  Co.  v.  Hutchins,  34  111.  108. 
Thompson  v.  Emmert,  15  111.  415; 


208 


DEFENSES   TO   THE   ACTION    OF   ASSUMPSIT. 


of  the  leaving  of  a  hatchway  in  the  sidewalk  in  an  unsafe  con- 
dition, and  there  was  judgment  for  the  citj',  it  was  held  that 
this  was  no  bar  to  a  subsequent  action,  by  the  person  injured, 
against  the  person  through  whose  negligence  the  accident  oc- 
curred, although  he  had  aided  in  the  defense  of  the  former 
suit,  in  pursuance  of  a  notice  given  to  him  by  the  city.' 

The  principal  Illinois  cases,  not  already  cited,  relating  to 
this  subject,  are  given  in  the  note  below.^ 

No.  119.    Plea  of  judgment  recovered. 

(As  in  No.  85,  ante,  to  the  asterisk,  and  then  proceed  :)  that  the  plaintiff 

heretofore  impleaded  him,  the  defendant,  in  the  said court  of  the  said 

county  of ,  to  the term  of  the  same  court,  in  the  year  18 — ,  in  a 

certain  plea  of  trespass  on  the  case  on  promises,  to  the  damage  of  the 

plaintiff  of dollars,  for  not  performing  the  very  same  promises  in  the 

said  declaration  mentioned;  and  such  proceedings  were  thereupon  had  in 
that  plea,  that  afterwards  in  that  same  term  {or  in  whatever  term  thejudg- 


>  Severin  v.  Eddy,  52111. 189.  See 
Goodrich  v.  Hanson,  33  111.  499. 

^  Dalton  V.  BentJy,  15  111.  430; 
Foltz  V.  Prouse,  15  111.  434;  Crahtree 
V.  Wells,  19  111.  55;  McConnel  v. 
Kibbe,  33  111.  175;  Dunning  v.  City, 

40  111.  487;  Shepard  v.   Butterfield, 

41  111.  76;  Lucas  v.  Le  Compte,  42  111. 
303;  Dickson  v.  Todd,  43  111.  504; 
McClosky  V.  McCormick,  44  111.  336; 
Lloyd  V.  Lee,  45  111.  277;  Wells  v. 
Miller,  45  111.  382;  Hamilton  v. 
Quimby,  46  111.  90;  Wright  v.  Dun- 
ning, 46  111.  271;  Gibbsy.  Jones,  AQ 
111.  319;  Stihvell  v.  People,  49  111.  45 
Elston  V.  Kennicott,  52  111.  272 
Morgan  v.  Sherwood,  53  111.  171 
Gaddis  v.  Leison,  55  111.  522;  Briscoe 
V.  LZoyd,  64  111.  33;  Hicks  v.  Chapin, 
67  111.  375;  Rogers  v.  Higgins,  57  111. 
244;  Lathrop  v.  Hayes,  57  111.  279; 
Williams  v.  Walker,  62  111.  517; 
R.  R.  Co.  V.  Cobb,  82  111.  183;  Riie- 
gerv.  R.  R.  Co.,  103  111.  449;  Tilley 
V.  Bridge,  105  111.  336;  Russell  v. 
Epler,  10  Bradw.  304:  Schertz  v. 
People,  105  111.  27;  Drake  v.  Perry, 
58  111.  122;  Bliss  v.  Heasty,  61  111. 


338;  Clayes  v.  White,  65  111.  357; 
Hibbard  v.  Thrasher.  65  111.  479; 
Crowx.  Bowley,  68  111.  23;  PhillijJS 
V.  3Ioir,  69  111.  155;  Hotvell  v.  Good- 
rich, 69  111.  556;  Kelly  v.  Donlin,  70 
111.  378;  Smith  v.  Wright,  71  111.  167; 
Kingsbury  v,  Buckner,  70  111.  514; 
Rudolph  V.  7ns.  Co.,  71  111.  190; 
Coal  Co.  V.  Cobb,  94  111.  55;  Pritch- 
ard  V.  Daly,  73  111.  523;  City  v. 
Sansnm,  87  111.  182;  Town  v.  Cool- 
edge,  89  111.  529;  R.  R.  Co.  v.  Maher, 
91  111.  312;  G.  L.  Co.  v.  Howell,  92 
111.  19;  G.C.  Co.  V.  People,  92  111. 
620;  R.  R.  Co.  v.  Goldbery,  2  Bradw. 
228;  Muellers.  Henning,  102  111.  646; 
Neff  V.  Smyth,  111  111.  110;  Jolly  v. 
Fitzgerald,  23  111.  App.  514;  Jenkins 
V.  Bank,  111  111.  471;  McCartney  v. 
Osburn,  118  111.  408;  Umlaufv.  Urn- 
lauf,  117  111.  583;  Drennanx.  Bunn, 
124  111.  183;  McMillan  v.  Lovejoy,  115 
111.  500;  Dulinv.  Prince,  29111.  App. 
212;  Richards  v.  R.  R.  Co.,  124  111. 
516;  Litch  v.  C«nc7i,  136  111.  410;  R. 
R.  Co.  V.  Slater,  139  111.  190;  Nappin 
V.  ^bboff,  51  111.  617;  Meier  v.  Pm- 
over,  21  111.  App.  551. 


DEFENSES   TO   THE    ACTION    OF    ASSUMPSIT.  209 

ment  icas  rendered),  by  the  consideration  and  judgment  of  the  same  court, 
the  plaintiff  recovered  against  the  defendant  the  sum  of dollars  dam- 
ages, as  well  as  the  costs  of  the  plaintiff  in  that  behalf  whereof  the  defend- 
ant was  convicted,  as  by  the  record  thereof  still  remaining  in  the  same 
court  more  fully  appears;  which  said  judgment  still  remains  in  full  force. 
And  this  the  defendant  is  ready  to  verify  by  the  said  record;  wherefore  he 
praj^s  judgment  if  the  plaintiff  ought  to  have  his  aforesaid  action,  etc. 

This  precedent  can  readily  be  adapted  to  different  forms  of 
action;  in  trespass,  for  example,  the  allegation  would  be  that 
the  former  action  was  "  for  committing  the  very  same  tres- 
pass," etc.  See  the  observations  under  the  precedents  of  pleas 
of  payment  and  accord  and  satisfaction. 

A  judgment  recovered  may  be  given  in  evidence  under  the 
general  issue  in  assumpsit,  debt  on  simple  contract,  and  case, 
but  in  debt  on  a  specialty,  and  in  covenant  and  trespass,  it 
must  be  pleaded.^  If  a  judgment  has  in  fact  been  recovered, 
it  is  advisable  to  plead  it  specially."'' 

No.  120.     Replication  to  a  plea  of  judgment  recovered. 

{Venue,  and  title  of  cause.) 

And  the  plaintiff,  as  to  the  said  plea  of  the  defendant,  by  him  ■ above 

pleaded,  says,  precludi  non,  because  he  says,  that  the  said  sevei-al  promises 
and  undertakings  in  the  said  declaration  mentioned,  were  not,  nor  was  any 
or  either  of  them,  any  of,  or  any  one  of  the  same  identical  promises  and 
undertakings  as  those  or  any  of  those  in  the  said  plea  mentioned,  and  for 
and  in  respect  whereof  the  said  supposed  judgment  in  the  said  plea  men- 
tioned was  recovered,  in  manner  and  form  as  the  defendant  has  alcove  in 
his  said  plea  alleged.  And  tliis  the  plamtiff  prays  may  be  inquii-ed  of  by 
the  country,  etc. 

E.  F.,  Att'y  forPrff. 

It  would  seem  that  whenever  the  plaintiff  has  in  truth  re- 
covered a  judgment,  for  a  cause  of  action  similar  to  that  men- 
tioned in  the  declaration,  and  the  defendant  pleads  such 
recovery  in  bar,  a  new  assignment  is  necessary;'  but  accordino- 
to  the  authority  of  some  cases,  the  plaintiff  may  take  issue  on 
the  allegation  that  the  promises  are  the  same,  by  a  replication 

>  1  Chit  PL  418,  422,  426,  429,  432,  '  3  Chit  PI.  929,  note. 

441;    Gould's  PL  303-311;  Wann  v.  n  ggp.  452;  3  Chit.  PI.  1213,  note; 

McNulty,  2  Gilm.  355;  Cook  v.   Vi-      see  1  Chit.  PL  542  et  seq. 
mont,  6  Monroe  284;  Miller  v.  Man- 
ice,  6  HiU  124. 
14 


210  DEFENSES   TO   THE    ACTION    OF   ASSUMPSIT. 

denying  it,  as  in  the  above  form/  for  which  see  a  precedent,  3 
Chit.  PL  1213.  A  case  in  3  Levinz's  Eeports,  p.  92,  is  cited, 
in  which  it  was  held  that  to  a  justification  in  trespass,  con- 
cluding with  a  statement  that  the  trespasses  mentioned  in  the 
plea  were  those  mentioned  in  the  declaration,  the  plaintiff 
could  not  reply  that  they  were  not  the  same  without  showing 
some  other  trespass."*  See  a  form  of  new  assignment  to  a  plea 
in  abatement,  «n^e,  No.  9  a.  If  the  plaintiff  wishes  to  deny 
the  alleged  former  recovery,  the  replication  will  be  7iul  tiel 
record,  which  can  be  framed  from  the  precedent  Iso.  9,  ante. 

PLEA    OF   TENDER. 

To  make  a  valid  tender  of  money,  the  debtor  must  produce 
the  precise  sum  due,  in  current  money  such  as  is  by  law  made 
legal  tender,  and  must  actually  offer  it  to  the  creditor;  to 
make  a  valid  tender  of  goods,  the  specific  articles  agreed  for 
must  be  produced  at  the  place  agreed  upon,  and  offered  to  the 
other  party.'  The  tender  must  cover  the  entire  debt,"  and 
must  be  absolute  and  not  hampered  by  conditions.*  A  ten- 
der must  be  pleaded  specially,  in  every  form  of  action.'  The 
plaintiff  may  at  once  take  out  of  court  the  sum  tendered,  even 
thouffh  he  denies  the  tender.' 

The  plaintiff  may  reply  a  demand  made,  and  a  refusal  to 
pay,  before  *  or  after '  the  tender — as  this,  if  established,  shows 
that  the  defendant  was  not  always  ready  and  willing  to  pay.'" 
But  a  prior  demand,  in  order  to  defeat  the  tender,  must  not 

^  Bagot  V.  Williams,  3  B.  «&  Ores.  Cothran  v.  Scanlan,S4Ga.  555;  Base 

235;  Seddon  v.  Tutop,  6  T.  R,  607;  3  v.    Duncan,  49  Ind.    269;   Shmv  v. 

Wils.  384.  Sears,  3  Kans.    236;   Richardson  v. 

2  3  Cliit.  PI.  1213,  note.  Boston  ,9  Met.  42;  Henderson  v.  Cass, 

3  Am.  &  Eng.  Ency.  Law,  Vol.  25,  107  Mo.  50, 

901  and  cases  there  cited.  »  1  Chit.  PI.  420-432-426^29-511. 

*  Moore  v.  Newman,  43  Minn.  428;  ''2  Swan's  Pr.  709. 

Rose  V.  Duncan,  49  Ind.  269;  Weed  *  Hume    v.    People,    8    East   168; 

V.  Adams,  152  Mass.  74;    Montague  Birks  v.  Treppet,  1   Haund.  33;  Bui. 

V.  Tongan,  68    Mich.  98;  Patnote  v.  N.  P.  156;    Goodland  v.   Blewith,  1 

Sanders, 41  Vt.  66;  Brandt  v.  R.  R.,  Camp.  478;  2  Swan's  Pr.  710. 
26  Iowa  114;   Helphley  v.   R.  R.,  29  »  3  Went.  180;    Spybey  v.  Hide,  1 

Iowa  480.  Camp.  181. 

'  Pulsifer  v.  Shepard,  36  III.  513;  '»  See  forms,  3  Chit.  PI.  1154-1155; 

Sanford    v.   Bulkley,   30  Conn.  344;  1  Chit  PI.  501. 


DEFENSES    TO    THE    ACTION    OF    ASSUMPSIT.  211 

have  been  of  a  larger  sum  than  the  amount  tendered; '  and  to 
sustain  a  replication  of  a  subsequent  demand,  the  plaintiff 
must  prove  a  demand  of  the  precise  sum  tendered.'  A  tender 
is  stricti  juris,  and  must  be  clearly  proved/  A  tender  to  a 
lawyer,  or  clerk,  who  is  authorized  to  collect  the  money,  is 
good/  In  order  to  keep  a  tender  good,"  it  is  not  necessary  to 
bring  the  money  into  court,  and  deposit  it,  but  it  is  sufficient 
if  the  money  is  in  readiness  when  ordered  by  the  court;  at  least 
this  is  the  rule  in  equity/  A  tender  must  be  kept  good,  and 
the  money  must  be  ready  to  be  delivered  within  a  reasonable 
time  after  the  acceptance  of  it  is  signified/  In  a  case  where  a 
tender  was  pleaded,  and  no  other  plea,  but  the  money  was  not 
brought  into  court,  and  the  defendants  refused  to  comply  with 
an  order  to  bring  it  in,  it  was  held  proper  for  the  court  to  dis- 
regard the  plea,  and  give  judgment  for  the  plaintiffs;  or, 
it  was  said,  the  plea  might  have  been  stricken  from  the 
files/ 

A  person  making  tender  can  not  insist  upon  a  receipt  in  full, 
but  he  must  rely  on  the  tender/  To  avoid  costs  it  must  be 
made  before  the  suit  is  commenced/"  By  the  statute  "  a  tender 
may  also  be  made  after  an  action  is  brought  upon  any  con- 
tract, of  the  whole  sura  due  thereon,  with  the  legal  costs  of 

'  See  Rivers  v.  Griffith,  5  B.  &  A,  24  Pick.  168:  Marine  Band  v.  Rusli- 

630;  see  1  Esp.  151;  Spybeyv.  Hide,  more,  28    III.  463;  Pidsifer  v.  Shep- 

1  Camp.  181.  ard,  36  111.  513;  Wood  v.  Trust  Co., 

'  Rivers  v.  Griffith,  5  B.  &  A.  630;  41  111.  267;  Webster  v.  Pierce,  35  111, 

see  Spybey  v.  Hide,  1  Camp.  181.  158;  McDaniel  v.  UjJton,  45  III.  App. 

*  Buchenau  v.  Homey,  12  111.  336;  151;  Brooks  v.  Laivyer,  61   111.  App. 

Kerney  v.  Gardner,  27  111.  162.  366. 

■*  14  Eng.  Com.  Law  385;  see  Starr  »  Knox  v.  Light,  12  111.  86. 

&  Curtis'  Stat.  2387;  Rev.  Stat.  (1893)  »  Thayer  v.  Brackett,  13  Mass.  450; 

1425;  Rev.  Stat.  (1895)1523.  Wagenblast   v.  McKean,  2  Grant's 

5  Doerr  v.  Brune,  56  111.  App.  657,  Cases    393;    Hamar  v.   Dimick,    14 

^Webster    v.  French,   11  111.254;  Ind.  105;  P?<Zs?/er  v.  S/ifparc?.  36  111. 

Mohn  V.  Stoner,  11   Iowa  30;  Colby  513;  Wood  v.  Hitchcock,   20  Wend. 

V.  Stevens,   38   N.  H.    191;  [Stoio  v.  47;  Roosevelt  v.  Bank,  45  Barb.  583; 

Rnssell,  36  111.  18;    Aidger  v.  Clay,  San  ford  v.  Bnlkley,  30  Conn.  344. 

109  lU.  487.  '"  Winningham  \.  Redding, Q  Jones! 

''  Sloan  Y.Petrie,  16  111.262;  Knox  Law  (N.  C.)  126;  Barker  v.  Bri72k, 

V.  Light,  12  111.  86;    Toicn  v.  Trow,  5  Clarke  (Iowa)  481. 


212  DEFENSES   TO   THE    ACTION   OF   ASSUMPSIT. 

suit  incurred  up  to  the  time  of  tender.'  But  it  does  not  apply- 
to  unliquidated  damages  growing  out  of  a  contract.^ 

A  person  guilty  of  a  tort  may  avoid  costs  by  a  tender  as  pro- 
vided in  section  G  of  chapter  entitled  "  Tender."  '  An  actual 
count  of  money  may  not  be  required  if  the  party  to  whom  it 
is  offered  absolutely  refuses  to  receive  it.  But  this  may  not 
dispense  with  the  existing  ability  to  make  the  payment,  and 
having  the  money  within  convenient  reach.* 

The  money  tendered  must  at  all  times  be  kept  in  readiness 
for  the  creditor,  and  not  used  by  the  debtor,  and  when  pleaded 
at  law  it  must  be  brought  into  court  for  the  creditor.  It  is  in 
this  way  only  that  the  debtor  can  escape  the  payment  of  inter- 
est and  costs.^  A  plea  of  tender  admits  the  amount  named 
therein  to  be  due,  and  the  debtor  is  estopped  from  denying  it;  ° 
but  only  to  that  extent  and  no  further." 

A  tender  of  money  in  a  handkerchief,  with  a  statement  of 
the  amount  and  kind,  is  sufficient.*  But  a  tender  must  be  of 
a  specific  sum,  and  without  any  terms  or  conditions.*  Unless 
objection  is  made  to  the  kind  of  money  oft'ered,  a  tender  of 
bank  notes,  certificate  of  deposit  or  bank  check  is  good.'" 

Where  a  plea  of  tender  of  damages  presents  the  only  issue 
in  the  case  the  only  question  for  the  jury  to  determine  is  the 

J  2  Starr  &  Curtis'  Stat.  2386;  Rev.  v.  Meeker,  86  111.  470;  Carrv.  Miner, 

Stat.  (1893),  1425;  Rev.  Stat.  (1895),  92  111.    604;    Wood  v.  Trust  Co.,   41 

1523;  Frantz  v.  Rose,  89   111.    590;  111.  267;  DeTFoZ/v.  Longr,  2Gilm.  679; 

Beach  v.  Jeffrey,  1  Braclw.  283;    Mc-  Stow  v.  Russell,  36  111.  18;  Knox  v. 

Daniel  v.   Upton,  45   111.  App.   151.  Light,  12  111.  86;  Webster  v.  Pierce, 

«  Gregory  v.    Wells,    62    111.    232;  35  111.  158;  G Riley  v.  Suver,  70  111. 

Bocfc  V.  T^'eJ^awf,  5  Bradw.  643.       '  Sb;  Wright  y.  McNeely,    11111.241; 

8  2  Starr  &  Curtis  2387;  Rev.  Stat.  Leonard  v.  Patton.  106  111.  99;  3Ic- 

(1893)  1425;  Rev.  Stat.  (1895),  1523;  Daniel  v.  Vj^ton,  45  111.  App.  151. 

FravtzY. Rose.  S9  111.590;   Beach  y.  ^  Monroe y.  Chaldeck,  78  111.  429; 

Jeffrey,  1  Bradw.  283;  Dunbar  v.  De-  Chitty  on  Cont.  793-802;  Sweetland 

Boer.   44  111.  App.    615;    Miller  v.  v.  Tuthill,  54  111.  215. 

Gable,  30  111.  App.  578.  '  Brix  v.  Ott,  101  111.  70;  see  By. 

*  Wynkoop  v.  Coiving,  21  111.  570;  Co.  v.  Kamman,  119  111.  362. 

Steele  v.  Biggs,  22  111.  648;  VentresY.  ^  Davis  v.  Stonestreet,  4  Ind.  101; 

Cobb,  105  111.  33;  GorhaniY.  Farson,  see  Conway  v.  Case,  22  111.  127. 

119  111.  425.  *  Pulsifer  v.  Shepard,  36  111.  513. 

^  Anlger    v.    Clay,    109    111.    487;  ^^  Snow    v.  Perry,    9    Pick.    539; 

Grain  Y.McGoon,  86  111.  431;  Thayer  Gradle  v.  Warner,  140  111.  123. 


DEFENSES   TO    THE    ACTION    OF    ASSUMPSIT.  213 

amount  of  damages  to  be  awarded.'  A  tender  may  be  with- 
drawn at  any  time  before  it  is  accepted.'  AYhen  the  jury 
finds  the  issue  of  tender  for  the  defendant  the  proper  practice 
requires  the  court  to  render  judgment  in  favor  of  the  defendant 
for  costs,  with  leave  to  the  plaintiff  to  take  the  money  out  of 
court.^ 

No.  121.     Tender — Non  assumpsit  except  as  to  the  sum  tendared,  and  plea 
of  tender  as  to  that  sum. 

In  the Court. 

Term,  18— 

C.  D. ) 
ats.    V  Assumpsit. 

A.  B.  )  And  the  defendant,  by  E.  F.,  his  attorney,  comes  and  defends, 
etc.,  when,  etc.,  and  as  to  all  the  several  supposed  promises  in  the  said  dec- 
laration mentioned  except  as  to  the  sum  of dollars  {the  smn  tendered), 

parcel  of  the  several  sums  of  money  in  the  said  declaration  mentioned,  {or 
if  some  of  the  counts  are  denied  altogether,  say  "  in  the  said  first  and  third 
counts  mentioned,")  says  that  he  did  not  promise  in  manner  and  form  as 
the  plaintiff  has  above  complained  against  him,  the  defendant :  And  of  tliis 
he  put  himself  upon  the  country,  etc. 

And  as  to  the  said  sum  of dollars,  parcel  of  the  said  several  sums  of 

money  in  the  said  declaration  mentioned  {or  as  above  in  the  jxtrentheses), 
the  defendant  says  that  the  plaintiff  ought  not  to  have  his  aforesaid  action 
against  him,  the  defendant,  to  recover  any  greater  damages  than  that  sum 
of  money,  because  he  says,  that  after  the  making  of  the  said  several  i)rom- 

ises  in  the  said  declaration  {or  "in  the  said counts  ")  mentioned,  as  to 

the  said  sum  of dollars,  parcel,  etc.,  and  before  the  commencement  of 

this  suit,  to  vv^it,  on,  etc.,  in,  etc.,  he,  the  defendant,  was  ready  and  willing 
and  then  and  there  tendered  and  offered  to  pay  to  the  plaintiff  the  said 

sum  of dollars,  parcel,  etc.,  to  receive  which  of  the  defendants  the 

plaintiff  then  and  there  wholly  refused:  And  the  defendant  further  says, 
that  ever  since  the  making  of  the  said  several  promises  as  to  the  said  sum  of 

dollars,  parcel,  etc.,  he  has  been,  and  still  is,  there  ready  to  pay  to  the 

plaintiff  that  sum  of  money;  and  the  defendant  now  brings  the  same  into 
the  court  here,  ready  to  be  paid  to  the  plaintiff,  if  he  will  accept  the  same. 
And  this  the  defendant  is  ready  to  verify;  wherefore  he  prays  judgment  if 
the  plamtiff  ought  to  have  his  aforesaid  action  to  recover  any  greater  dam- 
ages than  the  said  sum  of dollars,  parcel,  etc. 

If  the  money  has  been  paid  into  court  before  plea  pleaded, 
say  "  and  the  defendant  has  paid  the  same  into  the  said  court, 
ready,"  etc. 

1  Ry.  Co.  v.  Hogan,  56  111.  App.  s  ^reiv  v.  B.  R.  Co.,  57  lU.  App. 

577 ; Freio  v.  R.  R.  Co.,  51  111.  App.  42.       43. 
•^  Doerr  \.  Brune,  56  111.  Aijp.  657. 


214  DEFENSES   TO   THE    ACTION    OF   ASSUMPSIT. 

A  defendant  can  not  plead  no7i  assumpsit  as  to  the  whole  of 
the  demand,  and  a  tender  as  to  part,  but  must  qualify  the 
general  issue  and  his  other  pleas  as  above,  admitting  the  lia- 
bility as  to  the  sum  tendered.'  As  to  that  sum  no  other  plea 
can  be  pleaded  than  that  of  tender." 

A  further  special  plea,  following  the  plea  of  tender,  com- 
mences thus :  "And  for  a  further  plea  in  this  behalf,  as  to  all  the 
said  several  supposed  promises  in  the  said  declaration  men- 
tioned, except  as  to  the  said  sum  of dollars,  parcel,  etc., 

the  defendant  says  that  the  plaintiff  ought  not  have  his  afore- 
said action,"  etc.  The  prayer  in  the  conclusion  is  for  "  judg- 
ment if  the  plaintiff  ought  to  have  his  aforesaid  action  against 

him,  the  defendant,  except  as  to  the  said  sum  of dollars, 

parcel,"  etc.  In  a  plea  of  set-off,  pleaded  with  a  plea  of  tender, 
the  defendant  alleges  that  the  "said  sums  of  money  so  due 
from  the  ]3laintiff  to  the  defendant  exceed  the  damages  sus- 
tained by  the  plaintiff  by  reason  of  the  non-performance  by  the 
defendant  of  the  said  several  supposed  promises,  except  as  to 

the  said  sum  of dollars,  parcel,"  etc.,  and  offers  to  set  off, 

out  of  the  sums  so  due,  "  the  full  amount  of  the  said  damages, 
except  as  aforesaid;  "  and  if  money  has  been  paid  into  court, 
that  fact  is  alleged.^ 

An  actual  tender  must  in  general  be  averred.  It  seems, 
however,  that  if  the  plaintiff  expressly  dispensed  with  the  pro- 
duction of  the  money,  the  plea  should  especially  allege  such 
dispensation  or  discharge,  after  alleging  that  the  defendant 
was  ready,  etc.,  and  was  about  to  tender,  etc.'' 

In  deU  on  simple  contract,  the  defendant  pleads,  "  as  to  the 
several  sums  of  money  in  the  said  declaration  mentioned,  and 

thereby  demanded,  except  as  to  the  sum  of dollars,  parcel 

thereof,"  nil  debet.  The  plea  of  tender  then  follows,  in  nearly 
the  same  form  as  in  assumpsit,  but  in  the  commencement  and 
conclusion  the  language  is,  "  to  recover  any  damages  by  reason 
of  the  non-payment  of  the  said  sum  of dollars,  parcel,"  etc. 

'  Chit.  PL  478;  3  Chit.  PI.  922,  note;  ^  3  Chit.  PI.  923,  924. 

4T.  R.  194;Sfp7/Z)e?/v.  J:rtde,  ICamp.  ^Swan's  Pr.    709  note;   Read    v. 

184,  note;  Swan's  Pr.  709,  note.  Goldring,  2  M.  &  Sc.  86;   Finch   v. 

« 3 Chit.  PI.  922,  note;  3  Wills.  145;  Brook,  1  Bing.  (N.  C.)  253. 
2  Bla.  R.  723;  Swan's  Pr.  709,  note. 


DEFENSES   TO   THE    ACTION   OF   ASSUMPSIT.  215 

and  the  defendant  alleges  a  readiness  to  pay  "  when  the  said 

sum  of dollars,  parcel,  etc.,  became  due,"  and  ever  since, 

and  a  tender  of  that  sum  after  it  became  due,  etc' 

In  an  action  on  a  covenant  for  the  payment  of  money,  the 
plea  of  tender  is  substantially  the  same  as  in  assumpsit,  but  the 
limitation  in  the  commencement  is  "  as  to  the  supposed  breach 
of  covenantors^  above  assigned,  so  far  as  the  same  relates  to 

the  sum  of dollars,  parcel  of  the  sum  of dollars  in  the 

said  declaration  mentioned,"  etc.;  ^  and  the  plea  alleges  that 

*'  after  the  said  sum  of dollars,  parcel,  etc.,  became  due," 

etc.,  the  defendant  was  ready,  etc.,  and  tendered,  etc.,  and  that 
from  the  time  that  sum  became  due  he  has  been  ready,  etc., 
and  concludes  as  in  assumpsit,  but  with  the  additional  words, 
"  on  occasion  of  the  said  supposed  breach  of  covenant  Jirst 
above  assigned,"  etc. 

In  an  action  for  a  trespass  committed  by  cattle,  to  land,  the 
defendant  may  plead  a  tender  of  suificient  amends;^  and  in 
Q'epleviriiov  G2itt\e,  taken  damage  feasant^  the  plaintiff  ma^^  plead 
a  tender  of  amends  before  the  impounding.* 

No.  122.    Similiter  to  general  issue,  and  replication  to  plea  of  tender 

denying  it. 

In  the Court. 

Term,  18— 

A.  B.  I 
vs.     >  Assumpsit. 

C  D.  )  And  the  plaintiff,  as  to  the  plea  of  the  defendant  by  him  first 
above  pleaded,  and  whereof  he  has  put  himself  upon  the  country,  does  the 
like. 

And  as  to  the  said  plea  of  the  defendant  by  him  above  pleaded  as  to  the 

said  sum  of dollars,  parcel,  etc.,  the  plaintiff  says  that  he  ought  not,  by 

reason  of  anything  in  that  plea  alleged,  to  be  barred  from  having  his  afore- 
said action  to  recover  further  damages  than  that  sum  of  money,  because  he 
says,  that  the  defendant  did  not  tender  or  offer  to  pay  to  him,  the  plaintiff, 

the  sum  of dollars,  parcel,  etc.,  in  manner  and  form  as  the  defendant 

has  above  in  that  plea  alleged;  And  this  the  plaintiff  prays  may  be  in- 
quired of  by  the  comitzy,  etc. 

When  a  tender  can  be  proved,  and  the  plaintiff  is  prepared 

»  3  Chit.  PI.  95.5.  *  1  Chit.   PI.  511,  512;  3  Chit.  PI. 

2  3  Chit.  PI.  1021.  1198. 

3  1  Chit.  PL  441;  3  Cliit.  PL  10G6. 


216 


DEFENSES   TO   THE   ACTION    OF   ASSUMPSIT. 


to  prove  more  to  be  due  than  the  sum  tendered,  the  following 
replication  is  proper.' 

No.  123.    Replication  to  No.  121,  admitting  the  tender. 

(Similiter  to  general  issue,  as  in  last  precedent.)    And  the  plaintiff,  inas- 
much as  he  can  not  deny  but  that  the  defendant  did  tender  and  offer  to  pay  to 

him,  the  plaiutifF,  the  said  sum  of dollars,  parcel,  etc.,  in  manner  and 

form  as  the  defendant  has  above  in  his  said  second  plea  alleged,  freely  takes 
and  accepts  the  same  out  of  the  court  here;  therefore,  as  to  tlie  said  sum  of 
dollai-s,  the  plaintiff  is  satisfied,  etc. 

See  on  the  subject  of  Tender  generally,  the  additional  Illi- 
nois cases  mven  in  the  note.* 


PLEAS    BY    SURETV. 


Further  time  given  to  priiicipa]. — It  seems  this  defense 
may  be  proved  under  the  general  issue.'    Matters  affecting 


>  3  Ch.  PI.  1156,  note;  1  Chit.  PI. 
501. 

^Lincoln  v.  Cook,  2  Scam.  61; 
Bush  V.  Shipman,  4  Scam.  186; 
Doyle  V.  Teas,  4  Scam.  202;  DeWolf 
V.  Long,  2  Gilm.  679;  Keys  \.  Jasper, 
4  Scam.  305;  Wright  v.  McNeely,  11 
111.  241;  Webster  v.  French,  11  111. 
254;  People  v.  Dubois,  18  111.  333; 
Morgan  v,  Herrick,  21  111.  481;  Coyi- 
wayv.  Case,  22  111.  130;  Smithx. 
Lamb,  26  111.  396;  Blunt  v.  Tomlin, 
27  lU.  93;  Dodge  v.  Deal,  28  111.  304; 
Wolfv.  Willitts,  35  111.  88;  Staat  v. 
Evans,  35  111.  455;  Hammer  v.  Kauf- 
man, 39  111.  87;  White  v.  TJiomas, 
39  III.  227;  Headley  v.  Shaiv,  39  111. 
354;  Hunter  v.  Rilyea,  39  111.  368; 
Vromanv.  Darrow,  40  111.  171;  3Ic- 
Pherson  v.  Gale,  40  111.  368;  Mc- 
Pherson  v.  Walker,  iO  111.  371;  Nel- 
son V.  Oren,  41  111.  19;  Supervisors 
V.  Henebery,  41  111.  180;  Mears  v. 
Nichols,  41  111.  207;  Ryan  v.  Brant, 
42  111.  78;  Leake  v.  Brown,  43  111. 
372;  Hanna  v.  Ratckin,  43  111.  462; 
Dwen  V.  Blake,  44  111.  135;  McPher- 
son  V.  Hally  44  111.  264;    Higgins  v. 


Halligan,  46  111.  173;  City  v.  Wider. 
46  111.351;  Cityw.  Wehrung ,  A%  IW. 
392;  Boston  v.  Nichols,  47  111.  354; 
alley  V.  Hawkins,  48  111.  308:  Smith 
V.  Gillett,  50  111.  290;  Liebrandt  v. 
3Iyron,  61  111.  81;  Smith  v.  Sheldon, 
65  111.  219;  Jcnks  v.  Burr,  56  111. 
540;  Loomis  v.  Stave,  72  111.  623; 
Reinback  v.  Crabtree,  77  111.  182; 
By.  Co.  V.  Noe,  77  111.  513;  Sanborn 
V.  Benedict,  78  lU.  309;  Berger  v. 
Patterson,  78  111.  633;  Bradley  v. 
Parks,  83  111.  169;  Carr  v.  Mmer,  93 
111.  604;  Harding  v.  Loan  Co., 84  111. 
251;  Downing  v.  Plate,  90  111.  268; 
Comstock  V.  Gage,  91  111.  328;  Long- 
felloiv  V.  Moore,  102  111.  289;  Plumb 
V.  Taylor,  27  111.  App.  238;  Lyman 
V.  Gedney,  114  III.  395;  Dulin  v. 
Prince,  124  111.  76;  Doyle  v.  Sanford, 
26  111.  App.  156;  TFwgr  v.  Beach,  31 
111.  App.  85;  Cheney  v.  Roodhouse, 
135  111.  268;  Manistee  v.  5a)^^^ 
143  111.  490;  5a'/^A;  v.  Manister,  43 
111.  App.  525;  Hollenberg  v.  Tomp- 
kins, 49  111.  App.  323;  Z>a?/  v.  /?iv. 
Co.,  153  111.  293. 
*  M^arnerv.  Crane,  20  111.  148. 


DEFENSES    TO    THE   ACTION    OF   ASSUMPSIT.  217 

the  surety  only,  should  be  pleaded  by  him  alone.'  In  England 
the  rule  is  said  to  have  prevailed,  that  the  remedy  of  the 
suret}^,  where  further  day  of  payment  has  been  given  without 
his  consent,  is  only  in  chancery,  unless  the  fact  that  he  is  such 
surety  appears  on  the  face  of  the  contract;  and  some  courts  in 
the  United  States  have  followed  the  same  rule.  But  the 
weight  of  authority,  in  this  countr}^,  is  to  the  effect  that  the 
surety  may  show  that  such  was  his  relation  to  the  contract, 
and  avail  himself  of  this  defense,  in  a  suit  at  law,  although  he 
appears  as  a  principal  in  the  contract,^ 

Where  a  note  is  taken,  with  personal  security,  and  at  the 
same  time  other  securitv  therefor — as  for  instance  a  morts'ao-e 
on  land — is  existing  or  taken,  the  destruction  of  such  other 
security,  by  the  holder  of  the  note,  without  the  consent  of 
the  sureties,  will  release  the  latter.^ 

The  contract  of  a  surety  is  to  be  construed  strictl}?-,  both  at 
law  and  in  equity,  and  his  liability  is  not  to  be  extended  by 
implication  beyond  the  terms  of  his  undertaking,  as  under- 
stood when  the  contract  was  made."  It  is  a  general  rale  that 
mere  delay  to  sue  does  not  discharge  the  surety; '  but  where  a 
creditor,  without  the  assent  of  the  surety,  gives  further  time 
of  payment  to  the  principal,  the  surety  is  discharged,  both  at 
law  and  in  equity.* 

'  Beesley  v.  Hamilton,  50  111.  88.  v.  Studebaker,  15  Ind.  45;  Hunt  v. 

■Flynnv.  Mudd,  27  111.  323;  Ward  Bridgeman,  2  Pick.  581;  see  Broicn 

V.  Stout,  32  111.  399;  Rogers  v.  Trust-  v.  Haggerty,   26  111.  469;  Grabfetter 

ees,  46  lU.  428.  v.  Willis,  10  Bradw.  330;    Wittmer 

^Rogers  v.  Trustees,  46111.  428.  v,  Ellison,  72  111.  301. 

*  Reynolds  v.  Hall,  1  Scam.  35;  ^  Davis  v.  People,  1  Gilm.  409; 
People  V.  Moon,  3  Scam.  123;  Field  Gardiner  v.  Harbeck,  21  111.  129; 
V.  Raidings,  1  Gilm.  581;  Waters  v.  Ward  v.  Stout,  32  111.  399;  Pilgrim 
Simpson,  2  Gilm.  570;  Ryan  v.  v.  Dykes,  24  Texas  383;  Phares  v. 
Trustees.  14  111.  20;  Flynn  v.  Mudd,  Barbour,  49  111.  370;  see  Faricell  v. 
27  111.323;  Tipton^.  Carrigan,  10  Meyers,  ZolW.'^Q;  Galbraith  x .  Ful- 
Bradw.  318;  Grindal  v.  Ruby,  14  lerton,  53  111.  126;  Bank  v.  Water- 
Bradw.  439;  Ins.  Co.  v.  Johnson,  120  man,  134  111.  467;  Reynolds  v.  Bar- 
Ill.  622;  Vinyardv.  Barnes,  124  lU.  7iard,  36  111.  App.  221;  Edmonds  v. 
346.  Thomas,  41  111.  App.  507;   Truesdell 

5  Moreland  v.  State  Bank,  Breese  v.  Hunter,  28  111.  App.  296;  Brokaw 

263;   Peojjle  v.    White,    11   111.  341;  v.  i^ieW,  33  111.  App.  141. 
Pearl  v.  Wellmaii,  11  111.  352;  Kirby 


218  DEFENSES   TO   THE   ACTION    OF   ASSUMPSIT. 

A  promise  to  delay  the  collection  of  a  debt  for  an  uncertain 
period  will  not  discharge  a  surety.'  To  discharge  the  surety 
by  extension  of  time,  there  must  be  a  sufficient  consideration, 
and  a  time  definitely  fixed.'  But  an  equitable  estoppel  may 
sometimes  result,  ^yhich  will  prevent  a  recovery  against  a  guar- 
antor, where  an  agreement  has  been  executed,  although  there 
was  no  consideration  for  such  agreement.^ 

An  agreement,  for  a  good  consideration,  between  the  holder 
of  a  note  and  the  principal,  to  extend  the  time  of  payment  for 
a  definite  period,  will  discharge  the  surety,  unless  he  consents 
to  such  agreement  at  the  time,  or  subsequently  ratifies  it."*  To 
enable  a  surety  to  interpose  the  defense  to  a  note  that  further 
time  Avas  given  to  the  principal,  it  is  not  necessary  that  his 
name  should  appear  upon  the  note  as  surety.  It  will  be  suffi- 
cient if  he  was  actually  a  suret3^  and  this  was  known  to  the 
payee  when  the  note  was  given;'  and  the  fact  that  he  w^as  a 
surety  may  be  proved  by  verbal  testimony.  The  payee  of  a 
note  is  presumed  to  know  the  relation  which  the  parties  thereto 
sustain  to  each  other,  and  to  accept  the  note  with  that 
knowledge." 

The  payment  of  interest  upon  a  note  in  advance,  is  a  suffi- 
cient consideration  to  support  an  agreement  with  the  principal 
for  an  extension  of  time,  so  as  to  discharge  the  surety.'  An 
agreement,  after  the  maturity  of  a  note,  to  pay  the  interest 
thereon  at  the  rate  therein  specified,  and  also  one  hundred 

'  Gardner  v.    Watson,   13  111.  347;  103  111.  428;  Dodgson  v.  Henderson, 

Huntv.  Knox,  34  Miss.  655;  Alcock  113  111.  364;  Truesdell  v.  Hunter,  28 

V.  Hill,   4  Leigh.    622;    Villars    v.  111.  App.  292;  Reynolds  v.  Barnard, 

Palmer,  67  111.  204.  36  111.  App.   218;    Barnard   v.  Eey- 

•^  Gardner  v.  Watson,  13  111.  347;  nolds,   49    111.    App.    596;  Kerns   v. 

Woolfordv.Dou',Um.424\Immi7ig  Ryan,    26    111.    App.    177;   Bank  v. 

V.  Fielder,  8  Bradw.  256;   Waters  y.  Waterman,  134  111.  461. 

Sim23son,   2   Gilm.    570;   Meyers  v.  ^  Flynn  v.  Mudd,  21 IW.  d23;  Ward 

Bank,  78  111.  257;    Kriz  v.  Fokrok,  v.    Stout,    32    111.    399;    Rogers    v. 

46  111.  App.  418.  Trustees,  46  111.  428. 

3  White  V.  Walker,  31  111.  422.  «  Ward  v.  Stout,  32  111.  399. 

*  Flynn  v.  Mudd,  27  111.  323;  Gard-  ■>  Warner  v,  Campbell,  26  111.  282; 

nerv.  Watson,  13111.  347;  Gardiner  Flynnv.  3Iudd,  27111.  323;  Montague 

V.  Harbeck,   21    111.    129;  Hinds  v.  v.  Mitchell,  28  111.  481;  Woolford  v. 

Ingham,   31    111.    400;  Woolford  v.  Doiv,  34  111.  424. 
Dow,  34  111.  424;  Bradshaw  v.  Combs, 


DEFENSES    TO   THE   ACTION    OF   ASSOIPSIT.  219 

dollars  every  month  until  it  is  discharged,  entered  into  between 
the  payee  and  the  principal  debtor,  without  the  knowledge  or 
consent  of  a  surety,  does  not  constitute  a  valid  agreement  to 
extend  the  time  of  payment;  not  being  supported  by  a  new 
consideration,  it  will  not  discharge  the  surety  from  liability 
on  the  note.' 

Any  operative  agreement,  founded  upon  a  valuable  consid- 
eration, by  which  the  holder  of  a  note  agrees  to  give  time  to 
the  principal,  without  the  assent  of  the  surety,  will  release  the 
latter;  and  this  whether  before  or  after  the  maturity  of  the 
note.^  The  agreement  must,  however,  be  a  binding  one,  and 
not  unlawful  by  reason  of  usury  or  other  matter."  Any  change 
in  an  agreement,  without  the  assent  of  the  surety,  releases 
him;*  but  it  is  otherwise  if  he  consents  to  or  approves  of  such 
change.*  A  parol  agreement  to  vary  a  contract  under  seal 
can  not  be  pleaded  in  a  court  of  law  to  defeat  a  recovery  on 
such  contract;  and  such  an  agreement  will  not  discharge  a 
surety  from  liability." 

Notice  by  surety  to  creditor  to  prosecute. — We  will  next 
consider  when  a  surety  may  discharge  himself  by  giving  the 
creditor  written  notice  to  prosecute  the  principal. 

The  first  section  of  the  statute,  entitled  '•  Sureties,"  pro- 
vides : 

"  That  when  any  person  bound  as  surety  for  another  for  the 
payment  of  money,  or  the  performance  of  any  other  contract 
in  writing,  apprehends  that  his  principal  is  likely  to  become 
insolvent  or  to  remove  from  the  state  without  discharsrino- 
the  contract,  if  a  right  of  action  has  accrued  on  the  contract, 
he  may,  by  writing,  require  the  creditor  forthwith  to  sue  upon 
the  same;  and  unless  such  creditor  shall,  within  a  reasonable 
time  and  with  due  diligence,  commence  suit  thereon  and 
prosecute  the  same  to  final  judgment  and  execution,  the  surety 

'  Woolford  V.  Doiv,  34  111.  424;  see  *  Cunningham  y.  Wrenn,  23111.  64; 

Gardner  v.  Watson,  13  111.  347.  Gardiner  v.  Harbeck,  21  111.  129. 

2  Warner  v.    Crane,   20    111.    148;  ^  Gardiner  v.  Harbeck,  21  111.  129; 
Warner  v.  Campbell,  26  111.  282;  see  Hinds  v.  Ingham,  31  111.  400. 
Faricell  v.  Meyer,  35  111.  40.  «  Chapman  v.  McGrew,  20  III.  101; 

3  Galbraith   v.   Fullerton,   53  111.  but  see  niiite  v.  Walker,  31  111.  422. 
126. 


220  DEFENSES   TO    THE   ACTION   OF   ASSUMPSIT. 

shall  be  discharged;  but  no  such  discharge  shall  in  any  case 
affect  the  rights  of  the  creditor  against  the  principal  debtor."  ' 

The  undertaking  of  a  surety  is  absolute  in  its  terms,  and  he 
is  not  permitted  to  discharge  himself  by  requesting  the  cred- 
itor to  proceed  against  his  principal.^  The  rights  of  the  cred- 
itor against  the  surety  are  not  im])aired  by  mere  delay,  except 
where  the  surety  has  the  right  to  require  the  creditor  to  pros- 
ecute the  principal,  and  insists  on  the  right  by  giving  notice  m 
writing  to  prosecute." 

To  release  the  surety  there  must  be  a  written  notice  by  him 
to  the  holder  of  the  obligation  to  bring  suit,  served  personally, 
and  a  neglect  to  comply  therewith.*  Where  there  are  two  or 
more  sureties  on  a  note,  a  notice  to  sue  given  by  one  surety  on 
his  own  behalf,  will  not  operate  to  discharge  another  surety 
who  does  not  give  notice."  A  plea  by  a  surety  which  is  sub- 
stantially in  the  language  of  the  statute  is  sufficient.® 

In  the  case  of  Payne  v.  ^Yebster^  19  111.  103,  the  plea  con- 
tained no  averment  of  notice  that  the  defendant  was  a  surety 
in  the  note,  but  alleged  that  he  "  signed  the  said  note  as  secu- 
rity; "  and  the  court,  holding  it  good,  said  that  to  sustain  that 
plea  it  must  appear  on  the  face  of  the  note  that  the  defend- 
ant signed  it  in  that  character.  But  it  would  seem  from  the 
case  of  Ward  v.  Stout,  32  111.  399,  that  where  a  surety  on  a  prom- 
issory note  seeks  to  avail  himself  of  a  failure  on  the  part  of 
the  creditor,  after  notice  given  to  bring  suit,  the  suretyship 
may  be  established  by  evidence  outside  of  the  note.  To  alloAV 
this,  the  court  says,  does  no  violence  to  the  rule  that  a  writ- 
ten instrument  can  not  be  varied  by  verbal  testimony,  for 

»2  StaiT  &  Curtis,  2372;  Rev.  Stat.  '^  Bartlett  v.  Cunningham,  85  111. 

(1893),  1420;  Rev.  Stat.  (1895),  1518;  22;  Tipton  v.  Carrigan,  10  Bradw. 

Villarsv.  Palmer,  67  111.  204;  Hoxise  318;   Imniing  v.  Fielder,  8  Bradw. 

V.   Trustees,  83  111.  368;    Taylor   v.  256. 

Beck,  13  111.  376;  Bank  v.  Pierce,  99  *  Wilson  v,  Tebbets,  29  Ark.    579; 

111.    272;    Miller   v.    Gray,   31    111.  Ronton  v.  Lacey,!!,  Mo.  899;  Letcher 

App.  453;    Trustees  v.  Southard,  31  v.  Yantes,  3  Dana  160;  Klingensmith 

111.  App.  359;   Dallemand  v.  Bank,  v.   KUngen^mith,  31  Penn.   St.  460; 

54  111.  App.  600.  Alford     v.    Baxter,    36     Vt.     158; 

2  Taylor  v.  Beck,  13  111.  376;  Carr  Trustees   v.  Southard,  31  111.  App. 

V.  Ilou-ard,  8  Blackf.  (Ind.)  190.  359. 

=■  People  V.  White,  11  111.  341;  Pearl  « Imming  v.  Fielder,  8  Bradw.  256; 

V.  Wellman,  11  lU.  352.  Payne  v.  Webster,  19  111.  102. 


DEFENSES    TO   THE    ACTION    OF    ASSUMPSIT.  221 

such  proof  of  the  suretyship  does  not  affect  the  terms  of  the 
contract,  but  merely  establishes  a  collateral  fact  and  rebuts  a 
presumption. 

The  gratuitous  giving  of  time  by  creditor  to  principal  does 
not  discharge  the  surety,  though  the  latter  gave  verbal  notice 
to  the  creditor  to  sue  the  principal,  who  was  then  solvent  but 
afterwards  became  insolvent.^  Bat  if  the  notice  given  was  in 
writing,  the  creditor  must  sue  in  a  reasonable  time,  or  the 
surety  will  be  discharged.^ 

See  statute  relating  to  sureties  on  official  bonds,  sureties 
on  exe(3utor's,  administrator's  and  guardian's  bonds,  and  sure- 
ties on  negotiable  instruments,  etc. 

Death  of  principal — Diligence  against  estate. — Section  3 
of  the  act  relating  to  Sureties,  provides  that  "  Whenever  the 
principal  maker  of  any  note,  bond,  bill  or  other  instrument  in 
writing  shall  die,  if  the  creditor  shall  not,  within  two  years 
after  the  granting  of  letters  testamentary  or  of  administration, 
present  the  same  to  the  proper  court  for  allowance,  the  sure- 
ties thei^eon  shall  be  released  from  the  payment  thereof  to  the 
extent  that  the  same  might  have  been  collected  of  such  estate 
if  presented  in  proper  time,  but  this  section  shall  not  be  con- 
strued to  prevent  the  holder  of  any  such  instrument  from  pro- 
ceeding against  the  sureties  within  said  two  j^ears."  ^ 

But  the  holder  is  not  prevented  from  suing  the  surety  within 
the  two  years  allowed  for  filing  claims.  The  holder's  right 
is  barred  only  by  a  failure  for  two  years  to  file  a  claim  against 
the  estate,  and  failing  to  sue  the  surety.  He  may  sue  the 
surety  during  such  period.* 

Any  consideration  which  is  sufficient  to  support  the  promise 
of  the  principal  will  sustain  the  promise  of  the  surety.* 

'  Cavr  V.Howard,  8  Blackf.  (Ind.),  v.  Mack,  90  111.  606;  Tipton  v.  Car- 

190;  Wittmerv.  Ellison,  72  III.  301;  rigan,  10  Bradw.  318. 

see  Taijlor  v.  Beck,  13  111.  376.  ^  Grindol  v.  Ruby,  14  Bradw.  439; 

5  Reid  V.  Cox,  5  Blackf.  (Ind.),  312;  Villars  v.  Palmer,  67  111.  204;  Hud- 

Overturfv.  Martin,  2  Ind.  507;  Mc-  dleston  v.  Francis,  124  111.  196. 

Allister  v.  Ely,  18  111.  250;  Ward  v.  »  Pritchett  v.  People,  1  Gilm.  525; 

Stout.  32  111.  399.  U.  S.  v.  Linn,  15  Peters  (U.  S.),  290; 

3  2  Starr  &  Curtis,  2373:  Rev,  Stat.  Leonard  v.    Vredenburg,  8    Johns. 

(1893),  1420;  Rev.  Stat.  (1895),  1518;  29. 
House  V,  Trustees,  83  111.  368;  Curry 


223  DEFENSES    TO    THE    ACTION    OF    ASSUMPSIT. 

No.  134.     Plea  by  surety  (to  declaration  on  promissory  note,  ivith  common 
counts),  that  without  his  assent  creditor  gave  further  time  to  principal. 

(First  plea,  non  assumpsit,  as  ante,  No.  82 : )  And  for  a  further  plea  in 
this  behalf,  the  said  E.  F.  says  that  the  plaintiff  ought  not  to  have  his  afore- 
said action  against  him,  the  said  E.  F.,  because  he  says,  that  the  several  sup- 
posed causes  of  action  in  the  said  declaration  mentioned  are  one  and  the 
same,  to  wit,  the  supposed  cause  of  action  in  the  said  first  count  mentioned^ 
and  not  different  causes  of  action;  and  that  the  promissory  note  in  that 
count  mentioned  was  made  and  delivered  to  t\\e  plaintiff  hj  the  said  C.  D. 
{the  other  defendant),  as  principal  debtor,  and  by  him,  the  said  E.  F.,  as 
surety  for  the  said  C.  D.,  and  not  otherwise,  whereof  the  plaintiff,  at  the 
time  of  the  making  and  delivery  of  the  said  note  as  aforesaid,  there  had 
notice  (*);  and  that  when  (or  "  before,"  or  "  after,"  as  the  case  may  he),  the 
said  note  became  due,  to  wit,  on,  etc.,  the  plaintiff,  at  the  request  of  the  said 
C.  D.,  and  in  consideration  (liere  state  the  consideration  according  to  the 
fact),  there  agreed  with  the  said  C.  D.  to  give,  and  did  then  and  there  give 
to  him  further  day  of  payment  of  the  amount  of  the  said  note,  to  wit,  until 

the day  of then  next  ensuing,  without  the  knowledge  or  consent 

of  him  the  said  E.  F. ,  by  reason  whereof  he,  the  said  E.  F. ,  became  discharged 
from  all  liability  upon  the  said  note.  And  this  he,  the  said  E.  F.,  etc.  {con- 
clude li'itli  a  verification,  as  in  No.  85,  ante). 

To  the  above  plea  the  plaintiff  may  reply  that  the  defend- 
ant did  not  execute  the  note  as  surety;  or  that  there  was  no 
such  agreement  as  therein  alleged;  or  that  the  giving  of  fur- 
ther day  of  payment  was  with  the  knowledge  and  consent  of 
the  surety,  or  was  ratified  by  him. 

No.  125.  Plea  by  surety  {to  declaration  on  promissory  note,  with  common 
counts),  that  creditor  was  required  in  writing  to  put  note  in  suit,  but 
did  not. 

{As  in  the  last  precedent,  to  the  asterisk,  and  then  proceed: )  and  that  after 
the  said  note  became  due,  to  wit,  on,  etc.,  he,  the  said  E.  F.  (apprehending 
that  the  said  C.  D.  was  likely  to  become  insolvent,  \or,  "  to  migrate  from 
this  state,"]  without  previously  discharging  the  said  note,  so  that  it  would 
be  impossible  or  extremely  difficult  for  him,  the  said  E.  F.,  after  being 
compelled  to  pay  the  money  due  by  the  said  note,  to  recover  the  same  from 
the  said  C.  D.,)  did  there  require  the  plaintiff,  by  notice  in  writing,  forth- 
with to  put  the  said  note  in  suit;  but  that,  nevertheless,  the  plaintiff  did 
not,  within  a  reasonable  time  thereafter,  commence  suit  on  the  said  note, 
and  proceed  with  due  diligence,  in  the  ordinary  course  of  law,  to  recover  a 
judgment  for,  and  by  execution  to  make,  the  amount  due  by  the  said  note; 
by  means  whereof ,  and  by  force  of  the  statute,  etc.,  the  plaintiff  has  for- 
feited all  right  to  demand  that  amount  of  him,  the  said  E.  F.  And  this  he, 
etc.  {conclude  with  a  verification,  as  in  No.  85,  ante). 


DEFENSES   TO   THE    ACTION   OF   ASSUMPSIT.  223 

PLEA    OF    BEEACH    OF  WAERANTT. 

Damao^es  arising  from  a  breach  of  warranty  may  be  proved 
under  the  general  issue,  by  way  of  recoupment/ 

See  the  observations  under  the  forms  of  declarations  on  war- 
ranties, ante^  and  the  authorities  there  cited;  and  see  also  the 
authorities  hereafter  cited,  relating  to  want  and  failure  of  con- 
sideration. 

A  plea  which  avers  that  a  note  was  given  for  a  boiler  and  fire- 
place, and  for  the  warranty  of  the  same  to  be  of  a  certain 
quality,  and  avers  a  breach  of  that  warranty,  and  that  they 
were  valueless,  shows  a  failure  of  consideration,  and  is  a  good 
plea."  A  manufacturer  who  sells  a  boiler,  impliedly  warrants 
that  it  is  well  made,  and  of  sound  material.' 

Where  a  manufacturer  vends  his  own  articles,  there  is  an 
implied  Avarranty  that  they  are  manufactured  in  a  workman- 
like manner.  It  is  otherwise  if  he  is  only  a  vendor;  in  that 
case,  if  there  is  neither  fraud  nor  warranty,  the  purchaser  buvs 
at  his  peril.*  If  a  purchaser  directs  as  to  the  manufacture  of 
an  article,  the  manufacturer  is  not  then  held  liable  for  any  in- 
sufficiency caused  by  following  such  direction.* 

Kg  particular  form  of  words  is  necessary  to  establish  a  con- 
tract of  warranty,  but  it  must  appear  that  the  alleged  war- 
rantor intended  to  bind  himself  to  make  good  the  quality  of 
the  article  sold;  and  the  evidence  should  show  that  this  made 
a  part  of  the  consideration  of  the  bargain.'  A  warranty,  in  or- 
der to  be  valid,  must  be  made  at  the  time  of  sale;  or  if  made 
afterward,  it  must  be  upon  a  new  consideration.'  Where  a 
party  is  to  deliver  a  quantity  of  corn,  (not  bought  on  inspec- 
tion,) under  an  executory  contract,  the  law  will  imply  a  war- 

•  Babcock   v.    Trice,   18   111.   420;  Misner   v.    Granger,    4    Gilm.    69; 
Crabtree  \.  Kile,  2\  IWASQ;  %ee  Stow  Leather  Co.   v.  Reissig,  48    lU,  75; 
v.Yarivood,   14  111.    24;    Stookeyv.  Phelan  v.  Andrews,  52  IW.  486. 
Hughes,  18  111.  55;  Seeley  v.  Peojjle,  *  Archdale  v.  Moore,  19  III.  565. 
27  111.  178;  Story  on  Sales,  393.  «  Adams  v.  Johnson,   15    111.  345; 

=  Beers  v.  Williams,  16  111.  69;  Oer-  Ender  v  Scott,  11  111.  35;  Hawkins  v.' 

tel  V.  Schroeder,  48  111.  133.  Berry,  5  Gilm.  36;  Mlieeler  v.  Eeed, 

^  Beers  v.    Williams,    16    111.    69;  36  111.81;    see    Richards   v.  Betzer, 

Cemetery  v.  Smith,  32  111.  253;  see  53  111.  466. 

Sears  v.  Crazier,  53  111.  245.  ■>  I'oicell  v.  Gatewood,  2  Scam.  23, 

*  Archdale  v.   Moore,   19  111.  565; 


22i  DEFENSES   TO   THE   ACTION   OF   ASSUMPSIT. 

ranty  that  it  is  to  be  of  a  fair  and  merchantable  quality.' 
The  acceptance  of  the  corn  by  a  \Yarehouseraan,  or  by  the 
purchaser  himself,  is  not  a  waiver  of  this  implied  Avarranty." 

The  purchaser  of  an  article  not  warranted  as  to  quality,  must 
take  the  hazard  of  his  bargain.  If  he  was  not  to  keep  the  ar- 
ticle purchased,  unless  it  suited  him,  he  should  return  it,  if  it 
does  not  suit  him,  at  the  earliest  practicable  moment."  Where 
wheat  is  sold  in  stack,  there  is  an  implied  warranty  that  it  is 
merchantable." 

If  an  administrator  takes  upon  himself  to  warrant  personal 
property  sold  by  him,  the  maker  of  a  note  given  for  such  prop- 
erty may  show  a  breach  of  the  warranty,  and  consequent  fail- 
ure of  consideration.'  Damages  for  a  breach  of  warranty  of 
chattels  sold  may  be  recovered  in  an  independent  suit,  or  they 
may  be  recouped  or  set  off  in  an  action  on  the  contract  of  sale. 
And  a  notice  of  the  defect,  or  an  offer  to  return  the  property, 
is  unnecessary  in  order  to  recover  damages." 

"Where  diseased  cattle  are  sold  under  a  warranty  of  their 
healthiness,  the  measure  of  damages  is  the  difference  between 
the  contract  price  and  their  value  in  their  diseased  condition, 
at  the  time  of  delivery,  together  with  the  amount  of  any  other 
immediate  damages  resulting  from  the  breach  of  warranty. 
And  in  a  case  where  cattle  were  so  sold,  and  the  seller  knew  at 
the  time  that  they  were  designed  to  be  sent  directly  to  New 
York,  to  be  sold  for  beef,  and  they  were  so  sent,  it  was  held 
that  expenses  incurred  on  such  of  the  cattle  as  died,  or  showed 
disease,  before  reaching  New  York,  were  immediate  damages.' 

A  representation  which  is  positive,  and  relates  to  a  matter  of 
fact,  will  constitute  a  warranty.  But  where  the  representation 
relates  to  that  which  is  a  matter  of  opinion  or  fancy,  it  is  to  be 
regarded  as  an  expression  of  opinion  rather  than  as  such  a 
statement  of  fact  as  will  amount  to  a  warranty,  unless  that 

i  Bdbcockv.  Trice,  18  in A20; Mis-         ^Nichols   v.    (?Mt&or,  20  111.    285; 

ner  v.   Granger,  4  Gilm.   69;   Pars.  Douglass  v.  Gardner,  10  Cush.  88. 
Con.  465, 466.  *  Fish  v.  Roseberry,  22  111.  288. 

«  Babcock   v.    Trice,    18  111.   420;         «  Welch  v.  Hoyt,  24  111.  117. 
Mears  v.  Nichols,  41   111.  207;  Chit.         ^Crabtree  v.  Kile,  21  lU.  180;  Chit. 

Cont.  401.  Cont.  362,  363. 

'  Crabtree  v.  Kile,  21  111.  180. 


DEFENSES   TO   THE    ACTION    OF   ASSrMPSIT.  225 

idea  is  excluded  by  an  express  warranty,  or  such  other  decla- 
rations as  leave  no  doubt  of  the  intention  to  make  a  warranty.' 

Where  a  person  selling  a  breast  pin  asserts  positively  that  it  is 
a  diamond,  such  assertion  amounts  to  a  warranty.^  A  war- 
ranty of  soundness  in  a  horse  or  mule  sold,  amounts  to  a  war- 
ranty against  any  defect  which  renders  it  not  capable  of  imme- 
diate use.' 

The  additional  recent  Illinois  cases  noted  below  may  be  con- 
sulted on  the  subject  of  breach  of  warranty.* 

No.  126.    Plcaof  breach  of  tcarranty,  etc.    (To  declaration  on  promissory 
note,  with  common  counts.) 

(First  plea  non-assumpsit,  as  ante,  No,  82;  second  plea  as  in  No.  S5,  ante, 
to  the  asterisk,  and  then  proceed:)  ihaA  the  several  supposed  causes  of  action 
in  the  said  declaration  mentioned  are  one  and  the  same,  to  wit,  the  sup- 
posed cause  of  action  in  the  said  first  count  mentioned,  and  not  different 
causes  of  action;  and  that  heretofore,  to  wit,  on  etc.,  aforesaid,  in  consider- 
ation that  the  defendant  would  buy  of  the  plaintiff,  at  his  request,  a  cer- 
tain boiler,  at  the  price  of dollars,  and  would  pay  him  the  sum  of 

dollars,  parcel  of  the  said  price,  and  would  make  and  deliver  to  him  the 
promissory  note  of  the  defendant  for  the  residue  thereof,  payable  to  the 

order  of  the  plaintiff months  after  that  day,  the  plaintiff  promised  him, 

the  defendant,  that  the  said  boiler  was  then  sound,  and  fit  for  the  purpose 
of  driving  the  machinery  of  a  certain  mill  of  the  defendant;  and  there- 

'  Towell  V.  Gatewood,  2  Scam.  23;  v.  Henderson,  32  111.  App.  334;  Lake 

see  Roberts  Y.  Applegate,  153111.  210.  v.  McRitchie,  134  111.  207;  Hoover  v. 

^Sparling    v.  Marks,  86   111.  125;  Doefsc/i,  54  111.  App.  65;  Roberts  v. 

see  i2»^  v.  JajTe^f,  94  111.  475.  Applegate,   153  111.    2\0;  Barnes  \. 

^Kenner  v.  Harding,  85  111.  264;  Sisson,  44  111.  App.  327;  3Ifg.  Co.  v. 

Putt  V.  Duncan,  2  Bradw.  461.  Saile,   45    111.  App.    562;     \Vhite  v. 

*  Schoenberger    v.      McEicen,     15  GresTiom,  52  111.  App.  399;  47(Z??na» 

Bradw.  496;  Lwni  v.  Wrenn,  113111.  v.  Weber,  28  111.  App.  94;   Titley  v. 

175;  Drennan  v.  Bunn,  124  111.  183;  Ent.  S.    Co.,  127  111.   462;    Cook  v. 

7ns.  Co.  v.  Morgan,  22  111.  App.  198;  Travener,  41  111.  App.  644;  Broicnv. 

McCormick  v.  Snell,  23  111.  App.  79;  Reinholdt,  41   111.  App.    602;  Whee- 

Ricev.  Fan  .4c^'ere,  22  111.  App.  588;  lock  v.   Berkley,  38    111.    App.  519; 

Becker  v.  Brawner,  18  111.  App.  39;  Keist  v.  Kingman,  36  111.  App.  493; 

Siegel  v.  Brooke,  25  111.  App.  207;  Henkins  v.    Miller,  45  111.  App,  34; 

Xingfmonv.  3far?m,  24111.  App.  435;  Ardtman   v.  Johnson,  45   111.  App. 

H.  P.  D.  Co.   V.    Schurlock,  23  111.  313;  Hodgman  v.  R.  R.  Co.,  45  111. 

App.  426;  Gibbs  v.  Kaszezki,  18  111.  App.  395;    Ryan  v.  Miller,  153  111. 

App.  623;  Tidly  v.  Ex.,  115  111.  545;  138;  Gliddonv.  Pooler,  50  111.  App. 

Cox  V.  Colics,  17  111.  App.  504;  IVil-  36;  Wrightman  v.    Tucker,    50    111. 

cox  V.  Carson,  29111.  App.  72;  Under-  App.  75;  Edwards  v.  Dillo;i,  147  III. 

wood  V.  Wolf,  131  lU.  434;  Aidtman  14. 
15 


226  DEFENSES    TO   THE    ACTION    OF    ASSUMPSIT. 

upon  the  defendant,  confiding  in  that  promise,  then  and  there  bought  of 
tlie  plaintiff  the  said  boiler,  and,  upon  the  sole  consideration  of  the  same 
promise  and  of  the  sale  of  the  said  boiler  as  aforesaid,  paid  to  him  the  said  sum 

of dollars,  parcel  of  the  said  price,  and  made  and  delivered  to  him  the 

promissory  note  of  the  defendant  for  the  residue  thereof,  as  aforesaid, 
which  is  the  same  note  in  the  said  first  count  mentioned;  yet  the  plaintiff 
did  not  regard  his  said  promise,  but  thereby  deceived  and  defrauded  the 
defendant,  in  this,  to  wit,  that  the  said  boiler  at  the  time  of  the  making  of 
the  said  promise  of  the  plaintiff,  was  not  sound,  and  fit  for  the  purpose  of 
driving  the  machinery  of  the  said  mill,  but  on  the  contrary  thereof  was  then 
unsound,  and  unfit  for  that  purpose,  whereby  the  said  boiler  became  and 
was  of  no  use  or  value  to  the  defendant;  and  by  reason  of  the  unsoundness 
and  unfitness  of  the  said  boiler  as  aforesaid,  the  same  afterwards,  to  wit,  on 
etc.,  there  burst  and  was  destroyed,  whereby  the  defendant  suffered  dam- 
age and  loss  of  his  property  to  the   amount  of dollars.     And  this,  etc. 

(conclude  ivitha  verification,  as  in  No.  S5,  ante.) 

PLEA  OF  WA;NT  or    FAILURE    OF    CONSIDERATION. 

The  9th  section  of  chapter  98,  in  regard  to  Negotiable  In- 
struments, provides,  that 

"  In  any  action  upon  a  note,  bond,  bill,  or  other  instrument 
in  writing,  for  the  payment  of  money  or  property,  or  the  per- 
formance of  covenants  or  conditions,  if  such  instrument  was 
made  or  entered  into  without  a  good  and  valuable  considera- 
tion, or  if  the  consideration  upon  which  it  was  made  or  entered 
into  has  wholly  or  in  part  failed,  it  shall  be  lawful  for  the  de- 
fendant to  plead  such  want  of  consideration,  or  that  the  con- 
sideration has  wholly  or  in  part  failed;  and  if  it  shall  appear 
that  such  instrument  was  made  or  entered  into  without  a  good 
or  valuable  consideration,  or  that  the  consideration  has  wholly 
failed,  the  verdict  shall  be  for  the  defendant;  and  if  it  shall 
a]ipear  that  the  consideration  has  failed  in  part,  the  plaintiff 
shall  recover  according  to  the  equity  of  the  case :  Provided, 
that  nothing  in  this  section  contained  shall  be  construed  to 
affect  or  impair  the  right  of  any  hona  fide  assignee  of  any  in- 
strument made  assignable  by  this  act,  when  such  assignment 
was  made  before  such  instrument  became  due."  ' 

12  Starr  &  Curtis  1661;  Rev.  Stat.  v.  Johnson,  17  Bradw.  549;  Jones  v. 

(189^^,  994;  Rev.   Stat.    (1895),   1062;  Hubbard,  17  Bradw.   564;  Mahon  v. 

see  Potter  v.Gronbeck,  117  111.  404;  Gaither,  59  111.  App.  583;   Waitev. 

Miller  v.  Lamed,  103  111.  562;  Allen  Kalicrisky,  22  111.    App.  382. 
v.  Mason,  17  Bradw.  318;  Lanferty 


DEFENSES    TO    THE    ACTION    OF    ASSUMPSIT.  227 

The  statutory  defenses  of  a  want  of  consideration,  or  a  total 
or  partial  failure  thereof,  are  distinct  defenses  and  must  be 
separately  and  specially  pleaded.'  And  under  a  plea  of  total 
failure,  a  partial  failure  can  not  be  given  in  evidence." 

No.  127.    Plea  of  want  of  consideration.    {To  declaration  on  promissory 
note,  with  common  counts.) 

(i<^ir.s#  p7ea,  non-assumpsit,  as  ante.  No.  83;  second  plea  as  in  No.  S5,  ante, 
to  the  asterisk,  and  then  proceed:)  that  the  several  supposed  causes  of  ac- 
tion in  the  said  declaration  mentioned  are  one  and  the  same,  to  wit,  the 
supposed  cause  of  action  in  the  said  first  count  mentioned,  and  not  differ- 
ent causes  of  action;  and  that  the  supposed  promissory  note  in  that  count 
mentioned  (*)  was  {here  set  forth  the  facts  attending  the  making  of  the  note, 
and  which  show  that  it  was  without  consideration — as  that  it  icas  given  for 
past  forbearance,  or  for  natural  affection,  etc. — and  conclude  thus:)  And  so 
the  defendant  says,  that  the  said  supposed  promissory  note  (*)  was  made 
without  any  good  or  valuable  consideration.  And  this,  etc.  {verification  as 
in  No.  85,  ante.) 

If  the  note  or  other  writing  was  given  without  any  pretense 
or  show  of  consideration,  omit  all  between  the  asterisks  in  this 
form.^  The  burden  of  proof,  under  this  plea,  is  on  the  de- 
fendant.* The  want  of  sufficient  or  legal  consideration  for 
the  contract,  or  illegality  in  the  contract  itself,  may,  it  is 
said,  be  given  in  evidence  under  the  general  issue,  in  assumpsit, 
though  it  must  be  pleaded  in  debt  on  a  specialty,  or  in  cove- 
nant; ^  but  it  would  seem  that  in  Illinois  and  Indiana  a  want 
of  consideration  must  be  specially  pleaded  in  an  action  on  a 
promissory  note.* 

1  Wadhams  v.   Swan,  109  111.  46;  ♦  Stacker  v.  Watson,  1  Scam.  207 

Wickersham  v.    Beers,  20  III.  App.  McFarland  v.    Williams,  107  111.  33 

243;  Smith  v.  Munich,  21   111.  App.  Grier  v.  Puterbaugh,  108    111.  602 

323;  Belden  v.  Church,  23  111.  App.  Wheat  v.  Summers,  13  Bradw.  444 

473;  L.  D.  Co.  v.  Clapp,  50111.  App.  Wickersham\.  Beers,  20  Bradw.  243 

301.  McCartney    v.     Washburn,   52    111 

^Swainv.  Catcood,  2  Scam.    505;  App.  540. 

Sims  V.  Klein,  Breese  302;  Johnson  ^  1  Chit.  PL  417-428;  Wi7ieman  v. 

V.   Wilson,  54  111.  419;   Wadhams  v,  Obeme,  40  111.  App,  270;  Wilson  v 

Sivan,  109  111.  46;  Lumley  v.  Golden,  King,  83  111.  232. 

15  Bradw.  462.  *See  Stacker  v.  Watson,  1  Scam, 

"See    Poole   v.     Vanlandingham,  207;  Buckmaster  v.  Grundy,  1  Scam 

Breese,  47,  note  2;  Sheldon  v.  Lewis,  310;    Henderson   v.  Palmer,  71   III 

97  111.  640;   Booth  v.  Wiley,  102  lU.  579;  Tenney  v.  Foote,  95  111.  99;  Pa- 

84.  ton  V.  Stewart,  78  111.  481. 


223  DEFENSES   TO    TUE   ACTION    OF   ASSUMPSIT. 

A  note  given  for  past  forbearance  of  a  debt  is  without  con- 
sideration;' and  natural  affection  is  not  a  valid  consideration 
for  a  note,  or  other  executory  contract.'  It  is  a  good  plea  to 
an  action  on  a  promissory  note,  that  the  consideration  was  a 
lease  which  was  null  and  void.' 

Where  A's  house  was  burned  by  accident,  and  the  fire  ex- 
tended, and  burned  the  house  of  B.,  and  the  latter,  by  falsely 
representing  that  he  could  prove  the  fire  to  have  been  caused  by 
the  negligence  or  misconduct  of  A.,  induced  him  to  give  his 
promissory  note  for  a  part  of  the  amount  of  the  loss,  the  note 
was  held  to  have  been  given  without  consideration.* 

A  promissory  note  may  be  given  upon  different  distinct  and 
independent  considerations,  and  if  one  consideration  is  valid 
and  the  other  not,  there  may  be  a  recovery  ^w  tanto  so  far  as 
it  is  founded  on  a  valid  consideration.^  A  quit-claim  deed  is  a 
sufficient  consideration  for  a  promissory  note." 

A  note  given  as  collateral  security  for  a  pre-existing  debt  is 
founded  upon  a  valid  consideration.^ 

JVb.  12S.    Plea  of  total  failure  of  consideration — breach  of  ivarranty.    {To 
declaration  on  promissory  note,  ivith  common  counts.) 

{First  plea,  non'  assumpsit,  as  ante  No.  82;  secondplea  as  in  No.  85,  ante, 
to  the  asterisk,  and  then  proceed:)  that  the  several  supposed  causes  of  action 
in  the  said  declaration  mentioned  are  one  and  the  same,  to  wit,  the  sup- 
posed cause  of  action  in  the  said  first  count  mentioned,  and  not  different 
causes  of  action;  and  that  on,  etc.,  aforesaid,  the  plaintiff  there  sold  to  the 

defendant  a  certain  boiler,  at  the  price  of dollars,  and  warranted  the 

said  boiler  to  be  then  sound,  and  fit  for  the  purpose  of  driving  the  machin- 
ery of  a  certain  mill  of  the  defendant;  and  that  thereupon  the  defendant, 
upon  the  sole  consideration  of  the  said  sale  and  warranty  of  the  said  boiler 
as  aforesaid,  then  and  there  paid  to  the  plaintiff  the  sum  of dollars, 

1  Carter  v.  Moses,  39  111.  539;  Mul-  Ry.   Co.   v.   Mathers,    104  111.  257: 

holland  v.  Bartlett,  74  111.  58;  Edle-  Reeves  v.  Hyde,  14  Bradw.  233. 

man  v.  Byers,  75  111.  367;  Thayer  v.  *Knotts  v.  Preble,  50  111.  226. 

Allison,  109  111.  180;  Parker  v.  En-  ^Parish  v.   Stone,   14    Pick.  198; 

slow,    102    111.    272;    Henderson    v.  Forbes  v.  Williams,  13111  App.  280; 

Palmer,  71  111.  580.  Graves  v.  Safford,   41  111.  App.  659. 


2  Kirkpatrick  v.  Taylor,  43  111.  207 
Forbes  v.  Williams,  13  Bradw.  280 
PadfieM    v.   Padfield,   68    lU.    210 


6  Bonney  v.  Smith,  17  111.  531;  Shel- 
don V.  Harding,  44  111.  68. 
'  Hancock  v.  Hodgson,  3  Scam. 


Pratt  V.  Trustees,  93  111.  475;  Will-      329;    Blackwood    v.   Bowen,  43  111. 
iams  V.  Forbes,  114  111.  167.  App.  320. 

^Kinzie  v.  Chicago,  %  Scam.  187; 


DEFENSES   TO  THE   ACTION    OF    ASSUMPSIT.  220 

parcel  of  the  price  aforesaid,  and  made  and  delivered  to  him  the  promis- 
sory note  in  the  said  first  count  mentioned,  to  secure  the  payment  of  the 
residue  of  the  said  price;  and  that  the  said  boiler,  at  the  time  of  the  said 
sale  and  warranty  thereof  as  aforesaid,  was  not  sound  and  fit  for  the  pur- 
pose of  di'iving  the  machinery  of  the  said  mill,  but  on  the  contrary  thereof 
was  then  unsound,  and  unfit  for  that  purpose,  whereby  the  said  boiler  be- 
came and  was  of  no  use  or  value  to  the  defendant:  and  that  by  reason  of 
tJie  unsoundness  and  unfitness  of  the  said  boiler,  as  aforesaid,  the  same 
afterward,  toxcit,  on,  etc.,  there  burst,  and  was  thereby  destroyed:  And 
so  the  defendant  says  that  the  consideration  upon  which  the  said  note  was 
made  has  wholly  failed.  And  this,  etc.  {conclude  with  a  verification,  as  in 
No.  85,  ante.) 

No.  129.    Plea  of  total  failure  of  consideration — breach  of  warranty  of  a 
horse.     {To  declaration  on  promissory  note,  with  common  counts.) 

First  plea,  non  assumpsit,  as  ante,  No.  82;  second  plea  as  in  No.  85,  ante, 
to  the  asterisk  and  then  proceed: )  that  the  several  supposed  causes  of 
action  in  the  said  declaration  mentioned  are  one  and  the  same,  to  wit,  the 
supposed  cause  of  action  in  the  said  first  count  mentioned,  and  not  differ- 
ent causes  of  action:  and  that  on,  etc.,  aforesaid,  the  plaintiff  there  sold  to 

the  defendant  a  certain  horse,  at  the  price  of dollars,  and  warranted 

the  said  horse  to  be  then  sound;  and  that  thereupon  the  defendant,  upon 
the  sole  consideration  of  the  said  sale  and  warranty  of  the  said  horse, 
aforesaid,  then  and  there  made  and  delivered  to  the  plaintiff  the  promis- 
sory note  in  the  said  first  count  mentioned,  to  secure  the  payment  of  the 

said  sum  of dollars;  and  that  the  said  horse,  at  the  time  of  the  said 

sale  and  warranty  thereof,  as  aforesaid,  was  not  sound,  but  on  the  contrary 
thereof  was  then  unsound  (*)  and  affected  with  disease,  whereby  the  said 
horse  became  and  was  of  no  use  or  value  to  the  defendant,  and  of  the  same 
disease  afterward.'^  died:  And  so  the  defendant  says,  that  the  consideration 
upon  which  the  said  note  was  made  has  wholly  failed.  And  this,  etc., 
{conclude  with  a  verification  as  in  No.  85,  ante.) 

The  plaintiff  may  reply  that  the  horse  was  sound,  and  free 
from  disease,  or  deny  the  warranty.  The  plea  of  failure  of 
consideration,  setting  up  a  breach  of  a  warranty  of  soundness, 
should  state  the  breach  co-extensively  with  the  contract  of  war- 
ranty. It  must  negative  the  words  of  the  contract.  The  par- 
ticular unsoundness  need  not  be  stated.' 

A  plea  of  failure  of  consideration  to  an  action  upon  a  note 
should  state  particularly  in  what  the  failure  consisted.  Gen- 
eral allegations  are  not  sufficient.'     In  pleading  a  total  failure 

^  LeeperT.  Shaivman,  X'i  Ind.  463;  ^Taylor  v.   Sprinkle,   Breese  17 

2  Saund.  PI.  &  Ev.,  1226;  1  Chit.  PI.,  Cornelius  v.  Vanorsdall,  Breese  23 
291;  9  Co.  60,  b.  Poole  v.  Vanlandingham,  Breese  47 


230  DEFENSES   TO   THE   ACTION   OF   ASSUMPSIT. 

of  consideration,  the  plea  should  set  forth  every  distinct 
element  entering  into  the  consideration,  and  then  as  distinctly 
aver  a  failure  of  each  and  all  the  parts  of  it.' 

A  partial  failure  of  consideration  can  not  be  given  in  evi- 
dence under  the  general  issue  and  a  notice  of  set-off,^  or  under 
a  notice  or  plea  of  total  failure  of  consideration.'  Mere  inad- 
equacy of  consideration  is  no  ground  for  impeaching  a  con- 
tract.* Parol  evidence  may  be  received  to  impeach  the  consid- 
eration of  a  note,  but  not  to  vary  its  terms.'  A  general  plea 
of  failure  of  consideration  is  bad.' 

No.  130.    Plea  of  total  failure  of  consideration  of  note  given  for  fees. 

{First  plea,  non  assumpsit,  as  ante,  No.  82.)  And  for  a  further 
plea  in  this  behalf,  the  defendant  says  that  the  plaintiff  ought  not  to 
have  his  aforesaid  action  against  him,  the  defendant,  (or  actio  non) 
because  he  says  that  the  sole  and  only  consideration  of  the  said 
promissory  note,  in  the  said  declaration  mentioned,  was  an  agreement 
entered  into  by  the  plaintiff  with  the  defendant  relating  to  his  fees  in  a 
murder  case  pending  in  the  state  of  Missouri ;  that  before  and  at  the  time  of 
the  execution  and  delivery  of  said  note  to  the  plaintiff,  the  plaintiff  had 
been  and  was  the  attorney  for  one  G.  H.  in  said  prosecution  for  murder,  and 
had  then  already  earned  some  fees  therein ;  and  the  defendant  then  and 
there  being  desirous  that  the  plaintiff  should  not  make  any  charge  against 
the  said  G.  H.  for  his  legal  services  ah-eady  performed,  or  that  he  might  in 
the  future  perform  therein,  it  was  agreed  between  the  defendant  and  the 
plaintiff,  that  if  the  defendant  would  give  the  plaintiff  the  said  promissory 
note  for  the  sum  of dollars,  for  his  fees  in  said  cause,  he,  the  plaint- 
iff, would  never  make  any  charge  or  claim  against  the  said  G.  H .  for  his 
services  in  said  cause;  that  in  consideration  of  this  agreement  on  the  part 
of  the  plaintiff,  and  for  no  other  consideration  whatever,  the  defendant 
executed  and  delivered  the  promissory  note  in  suit  to  the  plaintiff;  and  the 

Bradshaw  v.  Neivman,   Breese   133;  v.  Cook,  33111.  168;  Johnson  v.  Wil- 

Sims  V.  Klein,  Breese   302;  Pai'ks  v.  son,  54  111.  419. 

Holmes,  22  ill.  Ty22:  Kinney  v.  Turner,  *  Major  v.  Brush,  7  Ind.  232;  Vest 

15  111.    181;  Christopher  v.  Cheney,  v.  Weir,  4  Blacki.  135. 

64  III.  26;  Honeymann  v.  Jarvis,  64  '  Penny  v.  Graves,  12  111.  287;  Gage 

111.  366;  Convith  v.  Colter,  82  111.  585.  v,  Lewis,  68  111.  604;  3Io7'ris  v.  Till- 

^  Kinney  v.    Turner,   15  111.    182;  son,   81  111.607;  Ruffy.  Jarrett,  94: 

Wilson  v.  King,  83  111.  232;  Sheldon  111.  475;  Mann  v.  Smyser,  76  111.  365; 

V.  Lewis,  97  111.  640.  Broadwell  v.  Sanderson,  29  111.  App. 

'  Swain  v.  Cawood,  2  Scam.  505;  384;  Kidder  v.  Vandersloot,  114  111. 

Sheldon  v,  Letvis,  97  111.  640.  136;    Martin  v.    Stubbings,   27  111. 

^  Stvaiyi  v.  Cawood,  2  Scam.  505;  App.  121. 

Sims  V.  Klein,  Breese  302;  Bitmap  ^  Applegate  v.  Crawford,  2  Carter 

(Ind.)  579. 


DEFENSES    TO    THE    ACTION    OF    ASSUMPSIT.  231 

defendant  further  avers,  that  after  the  maturity  of  said  note,  the  plaintiff, 
in  violation  of  said  agreement,  brought  suit  against  the  said  G.  H.  for  the 

sum  of dollars,  for  his  fees  in   the  said  murder  case;  that  after wai'ds 

the  said  suit  of  the  plaintiff  against  the  said  G.  H.  was  settled  and  compro- 
mised for  the  sum  of dollars,  paid  by  the  said  G.  H.  to  the  plaintiff, 

in  full  satisfaction  and  discharge  of  his  fees  as  aforesaid;  and  so  the  de- 
fendant says,  that  the  consideration  upon  which  the  said  note  was  exe- 
cuted, has  wholly  failed;  and  tliis  the  defendant  is  ready  to  verify;  where- 
fore he  prays  judgment,  etc. 

G.  H.,  Att'y  for  Deft. 

No.  131.  Plea  of  total  failure  of  consideration — to  action  by  assignee  of 
promissory  note  given  on  purchase  of  real  estate.  {Count  on  note  and 
common  counts.) 

{First  plea,  non  assumpsit,  as  ante.  No.  S2;  second  plea  as  ante,Ao.  85,  to 
the  asterisk,  and  then  proceed:)  that  the  several  supposed  causes  of  action 
in  the  said  declaration  mentioned  are  one  and  the  same,  to  wit,  the  sup- 
posed cause  of  action  in  the  said  first  count  mentioned,  and  not  different 
causes  of  action;  and  that  the  promissory  note  in  that  count  mentioned  was 
assigned  to  the  plaintiff  after  the  same  became  due;  and  that  the  consider- 
ation upon  the  said  note  was  made  has  wholly  failed.  And  the  defendant 
further  in  fact  says,  that  before  the  making  of  the  said  note,  to  wit,  on,  etc., 
aforesaid,  the  said  E.  V.  {the  payee)  there  agreed  with  the  defendant  to  sell  to 

him,  at  the  price  of dollars,  and  to  convey  to  him  in  fee  simple,  by  deed 

with  covenants  of  warranty,  a  certain  parcel  of  land,  to  wit,  {here  describe  the 
land;)  and  thereupon  the  said  E.  F. ,  on  the  day  aforesaid,  there  made  and 
delivered  to  the  defendant  a  deed  purporting  to  be  a  deed  of  conveyance  of 
the  said  parcel  of  land,  in  fee  simple,  (which  said  deed,  bearing  date  the 
day  aforesaid,  is  now  to  the  court  here  shown,)  and  thereby  covenanted  with 
the  defendant,  among  other  things,  that  {here  set  out  such  of  the  covenants 
as  may  be  desired,  for  example  as  follows — )  he  the  said  E.  F.  was  then 
well  seized  of  the  said  parcel  of  land,  as  of  a  good,  sure,  pei-fect,  absolute 
and  indefeasible  estate  of  inheritance  in  the  law,  in  fee  simple,  and  then 
had  good  right,  full  power  and  lawful  authority  to  gi'ant,  bargain,  sell  and 
convey  the  same  in  fee  simple,  as  aforesaid;  as  by  the  said  deed,  reference 
being  thereto  had,  will  more  fully  appear;  and  thereupon  the  defendant,  to 
secure  the  payment  of  a  part  of  the  said  price,  and  upon  the  sole  consider- 
ation of  the  sale  and  conveyance  so  agreed  and  purported  to  be  made  of  the 
said  parcel  of  land  as  aforesaid,  and  of  the  said  covenants  in  the  said  deed 
contained,  then  and  there  made  and  delivered  the  said  note  to  the  said  E. 
F.  And  the  defendant  further  says,  that  at  the  time  of  the  making  and 
delivery  of  the  said  deed  the  said  E.  F.  was  not  well  seized  of  the  said  j^arcel 
of  land,  as  of  a  good,  sure,  perfect,  absolute  and  indefeasible  estate  of  in- 
heritance in  the  law,  in  fee  simple,  nor  had  he  then  good  right,  full  power 
and  lawful  authority  to  gi"ant,  bargain,  seU  and  convey  the  same  as  afore- 
said, but  on  the  contrary  thereof  the  said  E.  F.  did  not  then  have,  nor  has 
he  since  acquired,  any  right  or  title  whatsoever  to  the  said  parcel  of  land, 
or  any  part  thereof;  by  means  whereof  {here  set  forth  an  eviction,  under 


232  DEFENSES    TO   THE   ACTION    OF    ASSUMPSIT. 

paramount  title,  if  such  has  been  the  fact,  or  allege  as  folloics—)  the  de- 
fendant has  not  had,  nor  has.  the  possession  or  enjoyment  of  the  said  parcel 
of  land,  or  any  part  thereof.  And  this,  etc.  (conclude  with  a  verification, 
as  in  No.  85,  ante.) 

The  plaintiff  may  reply  that  the  note  was  not  indorsed  after 
maturity;'  or  that  the  consideration  was  not  as  alleged  in  the 
plea,  or  that  the  title  to  the  land  has  not  failed.  If  deemed 
essential  to  put  in  issue  more  than  one  of  the  allegations  of 
the  plea,  the  plaintiff  may,  by  leave  of  the  court,  reply  several 
replications. 

To  a  plea  that  the  plaintiff  does  not  own  a  certain  title  to 
land,  and  consequently  can  not  convey  it  as  agreed,  it  seems 
that  he  may  reply  that  he  owns  the  title  in  equity,  and  can 
control  it  for  the  benefit  of  the  purchaser.' 

"Where  the  consideration  of  a  note  is  an  agreement  to  con- 
vey lands,  and  at  the  time  fixed  for  the  conveyance  the  vendor 
has  no  title  to  the  lands,  and  consequently  can  not  convey 
them,  there  is  such  a  failure  of  consideration  as  will  bar  a 
recovery  on  the  note.' 

The  title  to  the  land,  whatever  the  covenantor  professes  to 
have,  is  the  true  consideration  of  the  note  given  for  the  pur- 
chase money  thereof,  and  not  the  covenants  in  the  deed,"  It 
is  a  sufficient  defense  to  an  action  on  a  note,  to  show  a  breach 
of  a  covenant  of  warranty  in  a  deed  for  the  conveyance  of 
lands,  for  the  price  of  which  the  note  was  given.*  But  a  pur- 
chaser of  land,  receiving  a  deed  with  covenants  of  title,  can 
not  avoid  the  payment  of  promissory  notes  given  for  the  pur- 

'  See  Ebersole  v.  Bank,  36  lU.  App.  *  Tyler   v.    Young,  2   Scam.   444: 

267.  Owiags  v.  Thompson,  3  Scam.  502; 

^Eunkle  v.  Johnson,  30  111.  328.  3Iasonv.Wait,  4  Scam.  127;  Gregory 

^Elston  V.    Blanchard,   2    Scam.  v.  Scott,   4  Scam.  393;  Furness  v. 

420;  Tyler  v.  Young,   2  Scam.  444;  Williams,   11   111.   229;    Comcay  v. 

ifyers  v.    Aikman,    2   Scam.    452;  Case,221\\.  121;  see  Miller  v.  Howell, 

Gregory  v.  Scott,  4  Scam.  392;  Davis  1  Scam.  499;  Schuchmann  v.  Knoebel, 

V.   McVicker,  11    111.   337;    Lull    v.  27  111.   175;   Runkle  v.  Johnson,  30 

Stone,    37    111.    224;    see    Bailey  v.  111.  328;  Willets  v.  Burgess,  34  111. 

Cromirell,  3    Scam.    72;    Wagy    v.  494. 

Lane,  S  Scam.  2S1;  Sargeantv.  Kel-  ^ Slack  v.  McLagan,   15  111.    242; 

logg,  5   Gilm.  273;  Foster  v.  Jared,  Watts  v.  Parker,  27  111.  226;  Christy 

12   111.    451;  Vining  v.  Leeman,  45  v.    Ogle,    33   111.    295;    Laforge   v. 

111.  246.  Matthews,  68  111.  328. 


DEFENSES    TO   THE    ACTION    OF   ASSUMPSIT.  233 

chase  money  on  the  ground  that  the  grantor  had  no  title,  if 
the  possession  of  the  purchaser  has  not  been  disturbed  nor 
the  paramount  title  asserted.' 

Where  there  is  neither  fraud  nor  warranty  on  the  part  of 
the  vendor  in  a  sale  of  land,  the  vendee  can  not  recover  the 
purchase  money  paid,  although  there  may  be  a  total  failure  of 
title.^  In  an  action  on  a  note  given  on  a  purchase  of  land  the 
defendant  may  recoup  an  amount  he  has  been  compelled  to 
pay  in  order  to  remove  an  incumbrance  on  the  land.^  For 
cases  where  total  or  partial  failure  of  consideration  was  pleaded 
— the  consideration  being  the  title  to  real  estate — see  the  cases 
reported  in  4  Scam.  392,  561;  22  111.  127;  27  111.  175;  34  111.  494; 
and  45  111.  246. 

No.  132.    Plea  of  partial  failure  of  consideration.     (To  declaration  on 
promissory  note,  with,  common  counts.) 

(First  plea,  non-assumpsit,  as  ante,  No.  S2.)  And  for  a  further  plea  in 
this  behalf,  the  defendant  says  that  the  plaintiff  ought  not  to  have  his 

aforesaid  action  against  him,  the  defendant,  except  as  to  the  sum  of 

dollars,  because  he  says  (proceed  as  in  No.  129,  ante,  to  the  asterisk,  and 
thence  as  follows :)  and  so  has  continued  from  thence  hitherto,  by  reason 
whereof  the  said  horse  was  not  nor  is  of  any  greater  value  than  the  said 

sum  of dollars:    And  so  the  defendant  says,  that  the  consideration 

upon  which  the  said  note  was  made  has  failed  except  as  to  that  sum  of 
money.  And  this  the  defendant  is  ready  to  verify;  wherefore  he  prays 
judgment  if  the  plaintiff  ought  to  have  his  aforesaid  action,  except  as  to 
the  said  sum  of dollars. 

A  partial  failure  of  consideration  may  be  pleaded  to  a  prom- 
issory^ note  given  for  the  purchase  of  land.*  A  plea  which 
commences  as  a  plea  of  partial  failure  of  consideration  (which 
goes  only  to  a  part  of  the  action,)  and  concludes  as  a  plea  of 
fraud  (which  is  a  defense  to  the  whole  action,)  is  bad.^ 

See  further,  as  to  consideration,  and  want  or  failure  thereof, 
the  additional  Illinois  cases  noted  below.' 

1  Vining  v.  Leeman,  45  111.  246;  ^Schuchmann  v.  Knoehel,  27  111. 
gee  Linton  v.  Porter,  31  111.  107.  175. 

2  Do?/?e  V.  J?'?ia^9j),  3  Scam.  334;  see  *  Schuchmann  v.   Knoehel,  27  111. 
Bertrand  v.  Morrison,  Breese  227;  175;  Webster  v.Vickers,  2  HQam..2^ii; 
Merriwether  v.  Smith,  2  Scam.  31;  see  Willetsv.  Burgess,  34  111.  494. 
Farness    v.    Williams,   11    111.  229;  ^  Sims  v.  Klein,  Bveese  302. 
Willets  V.  Burgess,  34  111.  494.  «  Wood  v.   Hynes,   1   Scam.   103; 


231 


DEFENSES   TO    THE    ACTION   OF    ASSUMPSIT. 


PLEA  OF  ILLEGAL  CONSIDEKATION. 

By  the  statute  of  Illinois,  all  promises,  notes,  etc.,  for  the 
payment  of  money  or  pro|3erty  won  at  play  are  void  absolutely; 
and  no  assignment  of  any  such  note,  etc.,  affects  the  defense 
of  the  person  who  has  given  the  same.' 

Illegality  in  the  contract  itself— as  gaming,  etc. — may,  it 
seems,  be  given  in  evidence  under  the  general  issue  in  assump- 
sit, or  debt  on  simple  contract,  but  in  actions  on  specialties  it 
must  be  pleaded."  On  the  subject  of  gaming  contracts  the 
additional  Illinois  cases  given  in  the  note  may  be  consulted.* 


Stalker  v.  Hewitt,  1  Scam.  307; 
Hancock  v,  Hodgson,  3  Scam.  329; 
Conkling  v.  Uuderhill.  3  Scam.  388; 
Bradley  v.  Case,  3  Scam.  585;  Bar- 
ger  v.  Jones,  3  Scam.  613;  Hall  v. 
Perkins,  4  Scam.  548;  Mason  v. 
Caldwell,  5  Gilm.  196;  Walter  v. 
Kirk,  14  111.  55;  Harlow  v.  Boswell, 
15  111.  56;  Myers  v.  Turner,  17  111. 
179;  Bonney  v.  Smith,  17  111.  531; 
Sigsivorth  v.  Coulter,  18  111.  204; 
Buntainv.  Diifton,  21  111.  190;  Young 
V.  Ward,  21  111.  223;  Stephens  v. 
Thornton,  26  111.  328;  McHenry  v. 
Yokum,  27  111.  160;  Kerney  v.  Gard- 
ner, 27  111.  163;  Buntain  v.  Button, 
21  111.  190;  Watt  v.  Parker,  27  III. 
226;  Hill  v.  Todd,  29  101;  Hoyt  v. 
Jaffrey,  29  111.  104;  Conkling  v.  Vail, 
31  111.  166;  Cassell  v.  Ross,  33  111. 
244;  Stafford  v.  Fargo,  35  111.  481; 
Newell  V.  County,  37  111.  253;  How- 
ell V.  Edmunds,  47  111.  79;  Austin  v. 
Painter,  50  III.  308;  Bothwell  v, 
Broicn,  51  111.  234;  Hennessey  v. 
Hill,  52  111.  281 ;  Townsend  v.  Conim., 
63  111.  26;  Richards  v.  £e?zer,  53  111. 
467;  Gates  V.  Hoeckethal,  57  111.  534; 
Tuttle  V.  Ridgway,  62  111.  515;  7ns. 
Co.  V.  Smith,  63  111.  187;  Davenport 
V.  Springer,  63  111.  276;  Kirkham  v. 
Boston,  67  111.  599;  Padfield  v.  Pad- 
^eZd,  68  111.  210;  5«ZZ  v.  Benjamin, 
73  111.  39;  A'?ay/if  v.  Hulbert,  74  111. 
133;  £es<  v.  £a?ifc,  76  111.  608;  Win- 


kelman  v.  Choteau,  78  111.  107; 
Harms  v.  Anfleld,  79  111.  257;  T^'er- 
rier  v.  i'Vies,  85  111.  350;  Chetlain  v, 
/ns.  Co.,  86  111.  220;  Silverman  v. 
Chase,  90  111.  37;  C7.  T.  Co.  v.  i2t> 
don,  93  111.  458;  Di^ennan  v.  Bunn, 
124  111.  175;  Pr/ce  v.  Bank,  124  111.  317; 
Hodges  v.  iVas/i,  141  111.  391;  Rich- 
ardson V.  Richardson,  148  111.  563; 
Cothranv.  Ellis,  125  111.  498;  i/ardi/ 
V.  Ross,  4  Bradw.  501;  McJntyre  v. 
Robinson,  8  Bradw.  115;  Forbes  v. 
Williams,  13  Bradw.  280;  Martin  v. 
Stubbings,  20111.  App.  381;  Wheeler 
V.  Wheeler,  28  111.  App.  385;  Frolich 
V.  4Zea;a?icZer,  36  111.  428;  7ns.  Co.  v. 
SZiVZ,  43  111.  App.  233;  Cro/M«  v. 
Aldrich,  54  111.  App.  541. 

'  1  Starr  &  Curtis,  792;  Rev.  Stat. 
(1893),  492;  Rev.  Stat.  (1895),  534; 
Chapin  v.  Drake,  57  111.  296;  Bank 
V.  Van  Kirk,  39  111.  App.  23;  Trust 
Co.  V.  Goodrich,  75  111.  554;  Holland 
V.  Swain,  94  111.  154;  Abrams  v. 
Camp,  3  Scam.  290;  Williams  v. 
Jtfdi/,  3  Gilm.  282;  Pearce  v.  T'ooZe, 
113  111.  228;  Pope  v.  Hanke,  53  111. 
App.  453. 

n  Chit.  PI.  417,  421,  425;  see 
Beadles  v.  Bliss,  37  III.  330. 

^  Lurton  v.  Gilliam,  1  Scam.  577; 
^da?fts  V.  Woldridge,  3  Scam.  353; 
Morgan  v.  PeZZfZ,  3  Scam.  539; 
Nash\.  Monheimer,  30  111.  315;  Sf7?iz7/t 
V.   6'miY/i,   31    111.   344;   Gordon    v. 


DEFENSES    TO   THE   ACTION    OF   ASSUMPSIT.  235 

If  any  part  of  the  entire  consideration  of  a  contract  or  any  part 
of  an  entire  promise  be  illegal,  whether  by  statute  or  at  com- 
mon law,  the  whole  contract  is  void.' 

A  note  signed  by  one  as  surety  upon  the  promise  that  the 
maker  thereof  shall  not  be  prosecuted  for  embezzlement,  being 
based  upon  an  illegal  consideration,  is  void.^  See  the  obser- 
vations under  the  precedents  of  pleas  of  payment,  accord  and 
satisfaction,  etc.,  ante,  in  regard  to  adapting  the  plea  to  the 
different  forms  of  action. 

No.  133.    Plea  that  promises  were  for  money  icon  by  gaming. 

{First  plea,  non-assumpsit,  as  ante,  No.  83;  second  plea  as  in  No.  85,  ante, 
to  the  asterisk,  and  then  x>roceed  :)  that  the  sev^eral  supposed  promises  in  the 
said  declaration  mentioned  were,  and  each  of  them  was,  made  upon  the 
consideration  of  money  won  by  the  plaintiff  from  the  defendant  by  gam- 
ing, to  wit,  by  playing  at  certain  games  with  cards;  wherefore,  by  force 
of  the  statute,  etc.,  the  said  supposed  promises  were  and  are  wholly  void. 
And  this,  etc.  {conclude  loith  a  verification,  as  in  No.  So,  ante). 

(The  plaintiff  may  reply  that  the  promises  were  made  upon  good  and 
lawful  consideration,  and  not  upon  the  supposed  unlawful  consideration 
mentioned  in  the  plea.  See  the  replication  to  the  plea  of  usury,  No.  104, 
ante.) 

No.  134.    Replication  to  a  plea  that  note  icas  for  money  icon  at  play. '^ 

{Venue  and  title  of  cause.) 

And  the  plaintiff  as  to  the  said  plea  of  the  defendant,  by  him above 

pleaded,  says  precludi  non,  because  he  says,  that  the  said  pi-omissory  note 
was  made  and  delivered  to  hitn  by  the  defendant  for  the  sum  of  money 
therein  mentioned,  and  which  was  bona  fide  due  and  owing  to  him  by  the 
defendant,  and  not  for  money  won,  etc.  {negative  the  plea).  And  this  he 
prays  may  be  inquired  of  by  the  country,  etc. 

E.  F.,  Att'y  forPl'ff. 

No.  135.     Plea  of  illegal  consideration — Gambling  in  grain. 

{Commence  as  in  No.  85,  ante,  to  the  (*)  and  then  proceed:)  that  the  sev- 
eral supposed  causes  of  action  in  the  said  declaration  mentioned  are  one 

Casey,2^1\\.1(i;  TotmariY.  Strader,  Henderson  v.   Palmer,   71  111.   579; 

23  111.  493;  Stevens  v.  Sharp,  26  111.  Miles  v.  Andrews,  40   111.  App.  164. 

404;    Beadles  v.    Bliss,  27  111.   320;  '^  Henderson  \.  Palmer, '11  l\\.  ol^; 

McClurken  v.    Detrich,   33  111.  349;  Gorham    v.  Keyes,    137    Mass.  583; 

Graymanv.  Burlingame,  36  111.201;  Rouse  v.  Mohr,  29  111.  App.  326. 

Mosher  v.    Griffin,  51    111.  184;  Gar-  '  Riedle  v.  3Iulhauser,  20  111.  App. 

rison  v.  McGregor,  51  111.  473.  68;  2  D.  &  E.  439. 
'  Nash  v.  Monheimer,  20  111.  215; 


236  DEFENSES   TO   THE    ACTION   OF   ASSUMPSIT. 

and  the  same,  to  wit,  the  supposed  cause  of  action  in  the  first  count  men- 
tioned, and  not  different  causes  of  action;  that  the  sole  and  only  considera- 
tion upon  which  the  said  promissory  note  in  the  said  count  mentioned  was 
executed,  was  for  money  won  by  the  plaintiff  from  the  defendant  in  spec- 
ulating on  the  market  price  of  grain,  to  wit,  by  buying  and  selling  deals 
and  options  in  grain;  that  in  each  and  all  of  said  deals  and  options  it  was 
understood  and  intended  by  both  the  plaintiff  and  defendant,  that  neither 
party  was  to  receive  or  deliver  the  grain  so  bought  or  sold;  and  that  the 
loss  or  gain  resulting  from  such  transactions  should  be  settled  by  the  pay- 
ment or  receipt  of  the  difference  between  the  price  agreed  upon  and  the 
market  value  of  the  same  at  the  time  appointed  for  the  delivery  thereof. 
Wherefore,  by  force  of  the  statute  in  such  case  provided,  the  said  promis- 
sory note  is  wholly  void;  wherefore,  the  defendant  prays  judgment,  etc. 

The  intent  of  the  statute  (sec.  130,  chap.  38)  is  to  prohibit 
all  dealing's  in  options  in  grain  or  other  commodities.  The 
statute  should  be  justly  and  fairly  construed  to  enable  it  to 
accomplish  this  end,  and  not  to  defeat  it.' 

PLEA  OF    DISCHARGE    IN    BANKRUPTCY. 

The  bankrupt  law  provides  that  a  discharge  in  bankruptcy 
may  be  pleaded  by  a  simple  averment  that  on  the  da}^  of  its 
date  such  discharge  was  granted  to  the  bankrupt,  setting  the 
same  forth  in  hcec  verha;  and  the  certificate  shall  be  conclu- 
sive evidence,  in  favor  of  such  bankrupt,  of  the  fact  and  the 
regularity  of  such  discharge.'  It  was  not  intended  by  any  of 
the  provisions  of  the  bankrupt  law  that  the  bankrupt  courts 
should  pass,  in  a  plenary  manner,  upon  the  question  whether 
a  particular  claim  will  or  will  not  be  released  by  a  discharge. 
That  inquiry  is  one  properly  to  be  made  only  by  the  court  in 
which  a  direct  suit  on  the  debt  is  pending.     When  the  dis- 

1  Fearte  v.  Foote,  113  111.  228;  Mc-  Foote,  95  111.  99;  Brand  v.  Hender- 

Cormick  V.  Nichols,  19  Bradw.  334;  son,  107  111.  141;  PennY.  Boniman, 

Coffman  v.   Yotmg,  20   Bradw.  76;  102  111.  523;  Powell  v.  McCord,  121 

MUler  V.  Bensley,  20   Bradw.   528;  111.  333;  Cothran  v.  Ellis,   125  111. 

Larnedv.  Tiernon,  110 111.  173;  Eng-  496;  Schneider  v.  Turner,  130  111.  28; 

lish   V.    Cannon,    17    Bradw.    475;  Benson  v.    Morgan,  26  111.  App.  22; 

Pickering  V.  Cease,  79111.  d28;  Lyon  Wheeler  v.  McDermid,  36  111.  App. 

V.  Cidbertson,  83  111.  33;  Tenney  v.  179;  Bank  v.  Vankirk,  39  111.  App. 

Foote,   4  Bradw.    594;    Webster  v.  23;  Dillon  v.  McCrea,  59  111.   App. 

Sturges,    7    Bradw.    560;    Bank  v.  505. 

Sjmids,    8   Bradw.    493;   Doxey    v.  2  g^c.  34,  Bankrupt  Law  of  1867; 

Spaids,  8  Bradw.  549;  Kreigh  v.  see  By.  Co.  v.  Jenkins,  103  111.  588. 
Sherman,    105   111.    49;    Tenney   v. 


DEFENSES   TO    THE    ACTION    OF   ASSUMPSIT.  237 

charge  is  pleaded,  the  question  of  the  extent  of  its  operation 
upon  the  debts  of  the  bankrupt,  and  whether  a  particular  debt  is 
or  is  not  discharged  by  it,  comes  up  for  determination  by  the 
court  in  which  it  is  pleaded,  and  the  determination  will  be  a 
binding  judgment  between  the  parties/ 

A  discharge  duly  granted,  when  pleaded  in  bar  to  the 
further  maintenance  of  an  action  for  a  prior  debt,  can  not  be 
impeached  in  a  state  court  for  any  cause  which  would  have 
prevented  the  granting  of  it  under  section  29,  or  would  have 
been  sufficient  ground  for  annulling  it  under  section  34  of  the 
bankrupt  law.''  Section  33  of  the  bankrupt  law  provides 
"  that  no  debt  created  by  the  fraud  or  embezzlement  of  the 
bankrupt,  or  by  his  defalcation  as  a  public  officer,  or  while 
acting  in  any  fiduciary  character,  shall  be  discharged  under 
this  act."  '  JSTo  debt  contracted  by  fraud  can  be  discharged, 
even  though  the  debt  is  merge'd  in  a  judgment.*  Where  the 
record  of  the  action  shows  a  material  and  traversable  allega- 
tion of  fraud  as  its  sole  foundation  the  debt  or  demand  may 
fairly  be  said  to  be  one  founded  in  fraud,  and  is  not  merged 
by  a  judgment  thereon.^ 

A  claim  is  not  discharged  which  is  founded  on  a  deceit  by 
means  of  false  and  fraudulent  representations  and  inducements 
whereby  the  bankrupt  procured  from  the  plaintiff  an  assign- 
ment of  a  complete  stock  in  trade,  including  goods,  choses  in 
action,  etc.,  in  exchange  for  a  note  of  much  less  value  than 
was  represented,  if  not  wholly  worthless."  The  act,  from  its 
language,  seems  to  have  been  intentionally  made  so  broad  as 
to  include  a  debt  created  by  a  defalcation  of  the  bankrupt 
while  acting  in  any  fiduciary  capacity  whatever,  and  not  to  be 
confined  to  any  special  fiduciary  capacity.^  A  claim  against  a 
person  for  withholding  the  proceeds  arising  from  the  sale  of 

'  Bump's  Law  of  Bankr.  395;  36  *  See  Katz  v.  Moesinger,  110  111. 

How.  Pr.  R.  167.  372;  St.  John  v.  Stevenson,  90  111.  83, 

*  Bates  V.  West,  19  III.  134;  Bump's  ^  Bump's  Law  of  Bankr.  392. 

Law    of    Bankr.     396;    Bailey    v.  «  Bump,  392;  2  B.  R.  11;  1  L.  T.  B. 

Moore,  21  111.  165.  90. 

3  Bump's  Law  of  Bankr.  391;  Al-  •>  B.  R.  Sup.  7;   S.  C,  1    Bt.  248; 

len  V.  Hickling,  11   Brad.  549;   see  Bump,  392. 
Ames  V.  Moir,  130  III.  582. 


238  DEFENSES    TO    THE    ACTION    OF   ASSUMPSIT. 

goods  consigned  to  him  to  be  sold  on  commission,  is  a  debt  con- 
tracted by  him  in  a  fiduciary  capacity.' 

A  discharge  in  bankruptcy,  like  the  statute  of  limitations, 
does  not  annul  the  original  debt  or  liability  of  the  bankrupt, 
but  merely  suspends  the  right  of  action  for  its  recovery.  It 
therefore  follows  that  no  one  but  the  bankrupt  can  plead  his 
discharge  in  avoidance  of  his  liability.  He  may,  if  he  chooses? 
treat  his  covenants  and  obligations  as  still  binding  upon  him.' 

A  judgment  obtained  against  a  bankrupt  in  the  state  court 
pending  a  proceeding  by  him  in  the  United  States  court  for  a 
discharge  in  bankruptcy  is  valid,  notwithstanding  his  subse- 
quent discharge.  The  bankrupt,  after  his  discharge,  may 
apply  for  and  have  a  stay  of  the  execution  of  the  judgment.' 
A  discharged  debt  of  a  bankrupt  may  be  revived  by  an  abso- 
lute or  conditional  promise,  but  it  must  be  clear,  distinct  and 
unequivocal."  The  subsequent  promise  need  not  have  been 
made  after  the  discharge  but  it  is  sufficient  if  it  is  made  after 
the  petition  in  bankruptcy  is  filed." 

(In  debt  on  simple  contract,  the  word  contracts  may  be  ^vh- 
^t\tuie(\  ^ov J) romises;  Siudi  inactions  on  specialties  say  "the 
writing,"  or  "  the  supposed  writing  obligatory,"  instead  of 
"  the  several  supposed  promises.") 

No.  136.    Plea  of  discharge  in  harikruptcy. 

(First  plea,  non-assumpsit,  as  ante,  No.  82;  second  plea  as  in  No.  S5,  ante, 
to  the  asterisk,  and  then  proceed:)  that  after  the  making  the  several  supposed 
promises  in  the  said  declaration  mentioned,  and  before  the  commencement 
of  this  suit,  to  wit,  on,  etc.,  the  district  court  of  the  United  States  of 
America  for  the district  of granted  to  the  defendant  a  certain  dis- 
charge, in  these  words  and  figures,  to  wit :  {Here  set  forth  the  discharge,  in 
haec  verba.)  And  the  defendant  further  says,  that  the  several  supposed 
causes  of  action  in  the  said  declaration  mentioned  are  in  respect  of  debts 
and  claims,  and  each  of  them  is  in  respect  of  a  debt  and  claim  by  the  said 
act  of  congress  made  provable  against  the  estate  of  the  defendant,  and 

which  existed  on  the  said day  of ;  and  that  the  said  supposed 

causes  of  action  are  not,  nor  are  any  nor  is  any  one  of  them,  in  respect  of 

1  2  B.  R.  74,  114;  S.  C,  2  Bt.  554;  *St.  John  v.  Stevenson.  90  111.  82; 
S.  C,  6  Blatch.  292.  Cheiiey  v.  Barge,  26  111.  App.  182. 

2  Pease  v.  Pitch,  132  111.  638;  »  Cheney  v.  Barge,  26  111.  App. 
Bush  v.  Stanley,  122  111.  406.  182;  Wheeler  v.  Wheeler,  28  111.  App. 

3  Lackey  v.  Steere,  121  III.  598.  385. 


DEFENSES    TO    THE    ACTION    OF   ASSUMPSIT.  239 

any  such  debts  or  debt  as  are  or  is  by  the  said  act  excepted  from  the  opera- 
tion of  a  discharge  in  bankruptcy.  And  this,  etc.  (conclude  icith  a  verifica- 
tion, as  in  No.  85,  ante.) 

PLEA  DENYING  EXECUTION  OF  WRITTEN  CONTRACTS. 

The  33d  section  of  the  Illinois  Practice  Act  provides  that  "  no 
person  shall  be  permitted  to  deny,  on  trial,  the  execution  or 
assignment  of  any  instrument  in  writing,  whether  sealed  or  not, 
upon  which  any  action  may  have  been  brought,  or  which  shall 
be  pleaded  or  set  up  b}''  way  of  defense  or  set-off,  or  is  admis- 
sible under  the  pleadings  when  a  copy  is  filed,  unless  the  per- 
son so  denying  the  same  shall,  if  defendant,  verify  his  plea  by 
affidavit;  and  if  plaintiff,  shall  file  his  affidavit  denying  the  exe- 
cution or  assignment  of  such  instrument;  provided,  if  the  party 
making  such  denial  be  not  the  party  alleged  to  have  executed 
or  assigned  such  instrument,  the  denial  may  be  made  on  the 
information  and  belief  of  such  party."  *  This  section  controls 
United  States  circuit  courts  in  Illinois.' 

In  assumpsit,  when  the  execution  of  the  instrument  sued  on 
is  sought  to  be  put  in  issue,  the  proper  plea  is  non  assumpsit, 
verified  by  affidavit;'  and  in  debt  on  a  specialty,  and  covenant, 
the  proper  plea  is  non  est  factum,  verified  in  like  manner.*  The 
affidavit  is  not,  however,  competent  evidence  upon  the  issue  as 
to  the  execution  and  delivery  of  the  instrument.'  In  debt  on 
simple  contract  in  writing,  the  following  form  may  be  used, 
and  it  will  answer  in  any  action  at  law  on  a  written  instrument. 

iN'o.  137.     Plea  denying  execution  of  instrument. 

(As  in  No.  85,  ante,  to  the  asterisk,  and  then  proceed:)  that  he  did  not 
make  and  dehver  the  writing  in  the  said  declaration  mentioned,  in  manner 

'  2  Starr  &  Curtis  1797;  Rev.  Stat.  ner  v.  HarhacTc,  21  111.  129;  Home  F. 

(1893),  1075;  Rev.  Stat.  (1895),  1159;  Co.  v.  Beebe,  48  111.  138;  Williams  v. 

see  Bailey  v.  Bank,  127  111.  332.  Poio.  Co.,  36  111.  App.  107;  Murchie 

"^R.  R.  Co.  V.  Knight,  122  U.  S.  76.  v.  Peck,  57  111.  App.  396;  Bailey  v. 

^Baird  v.    Best,    13  Bradw.    385;  Bank,  21  111.  App.  642. 
Martin  v.  Culver,  87  111.  49;  Hitch-  *Longley  v.  Norvall,  1  Scam.  389; 

cock  V.    Buchanan,   105  U.  S.  416;  Witter  v.  McNeill,  3  Scam.  433;  3Iix 

Hinton  v.  Husbands.  3  Scam.  187;  v.  People,  92  111.  549. 
Ry.    Co.   V.    Neill,    16  111.    269;  see  ^Hunter  v.  Harris,  131  111.  482. 

Vance  v.  Funk,  2  Scam.  263;  Gardi- 


240  DEFENSES   TO   THE    ACTION   OF  ASSUMPSIT. 

and  form  as  the  plaintiflF  has  above  in  that  behalf  alleged:    And  of  this  the 
defendant  puts  liimself  upon  the  country,  etc. 

In  the Court. 

C.  D.    ) 

ats.     [Assumpsit.  . 

A.  B.    )     The  said  C.  D.,  defendant,   mates  oath  and  says,   (*)  that  the 

foregoing  plea  is  true  in  substance  and  in  fact. 

CD. 

Subscribed  and  sworn,  etc. 

Where  a  firm  name  is  improperly  used  for  the  private  pur- 
poses of  one  of  the  partners,  the  proper  practice  would  be  for 
the  other  to  file  a  plea  denying  the  execution  of  the  instru- 
ment, verified  by  affidavit.^  The  affidavit  must  be  made  by 
the  person  pleading  the  plea;  and  if  it  is  pleaded  by  several 
persons,  they  must  all  verify  it.  If  verified  by  but  one,  the 
plaintiff   has  to  prove  his  case  as  to  that  one  only.^ 

If  the  person  denying  the  execution  or  assignment  of  an 
instrument  is  not  the  person  alleged  to  have  made  or  assigned 
the  same,  the  words  "  upon  his  information  and  belief  "  are  to 
be  inserted  in  the  affidavit,  where  the  asterisk  is  placed  in  the 
above  form.  Keplications  and  rejoinders,  denying  the  execu- 
tion of  written  contracts  pleaded  or  replied,  can  be  framed 
from  the  above  form  of  plea;  or  non  est  factum  can  be  re- 
plied or  rejoined,  when  the  execution  of  a  specialty  is  to  be 
denied. 

See  the  additional  Illinois  cases  noted  below,'  and  those 
noted  under  the  next  two  forms. 

1  Zuel  V.  Bowen,  78  111.   234;  see  v.  Menkins,  15  111.  339;  Adams  v, 

Davis  V.  Scarritt,  17  111.   202;  Still-  King,  16  111.  1Q9;  Martin  y.    Culver, 

son  V.   Hill,  18  111.    262;  Smith  v.  87  111.   49;  Wallace  v.    Wallace,   8 

Knight,  71  111.  148;  Spurck  v.  Leon-  Bradw.  69;  Baird  v.  Best,  13  Bradw. 

ard  9  Bradw.  174.  385;  Shufeldt  v.  Henderson,   26  111. 

^  Stevenson x.Farnsworth,2Gi\m.  Apv.  593;  Renting  Co.  v.  Hutchin- 

715;  Kennedy  v.  Hall,  68  111.    165;  Svn,  25  111.   App.   476;  Aultman  v. 

Kingv.  Haines,  23  111.  340;  Bailey  Henderson,   32  111.   App.  331;  Don- 

V.  Bank,  21  111.  App.  643.  nell   v.  McDonald,  37  111.  App.  144; 

^Linn  v.    Buckingham,  1  Scam.  Jwdd  v.  Crad/e,  37  111.  App.  149;  Gid- 

451;  Delahay  v.  Clement,  2  Scam.  ding  v.  McCumher,  51  111.  App.  373; 

575;  Archer  v.  Bogue,  3  Scam.  526;  Crawford  v.    Crane,   61  111.   App. 

Dunght  v.  Newell,  15  lU.  333;   Frye  459. 


DEFENSES   TO   THE   ACTION    OF   ASSUMPSIT.  Si  I 

PLEA    DENYING    JOINT    LIABILITY. 

Section  35  of  the  Illinois  Practice  Act  is  as  follows :  "  In 
actions  upon  contracts,  express  or  implied,  against  two  or  more 
defendants,  as  partners  or  joint  obligors  or  payors,  whether  so 
alleged  or  not,  proof  of  the  joint  liability  of  the  defendants  or 
partnership  of  the  defendants,  or  their  christian  or  surnames, 
shall  not  in  the  first  instance  be  required,  to  entitle  the  plaint- 
iff to  judgment,  unless  such  proof  shall  be  rendered  necessary 
by  pleading  in  abatement,  or  unless  the  defendant  shall  file  a 
plea  in  bar,  denying  the  jpaHnership,  or  joint  liability,  or  the 
execution  of  the  instrument  sued  upon,  verified  by  affidavit."  ' 
This  differs,  in  the  respects  indicated  by  the  words  in  italics, 
from  the  law  as  it  existed  before  July  1,  1872. 

No.  138.    Plea  by  one  defendant,  denying  joint  liability. 

(See  form  No.  85,  ante,  as  to  commencement — )  the  said  E.  F.  says  that 
the  plaintiff  ought  not  to  have  his  aforesaid  action  against  him ,  the  said  E. 
F.,  because  he  says,  that  he  is  not  nor  ever  was  jointly  liable  with  the 
said  C.  D.  in  respect  of  the  several  supposed  causes  of  action  in  the  said 
declaration  mentioned,  or  any  or  either  of  them,  in  manner  and  form  as 
the  plaintiff  has  above  in  that  behalf  alleged:  And  of  this  he,  the  said  E. 
F.,  puts  himself  upon  the  country,  etc.     {Add  affidavit,  as  in  last  precedent.) 

139.    Plea  denying  joint  liability. 

{As  in  No.  85,  ante,  to  the  asterisk,  and  then  proceed :)  that  they  are  not 
nor  ever  were  jointly  liable  in  respect  of  the  several  supposed  causes  of 
action  in  the  said  declaration  mentioned,  or  any  or  either  of  them,  in  man- 
ner and  form  as  the  plaintiff  has  above  in  that  behalf  alleged:  And  of  this 
tlie  defendants  put  themselves  upon  the  country,  etc.  {Add  affidavit  as 
in  No.  137,  ante.) 

In  a  case  under  the  former  law,  the  court  said  that  where 
several  defendants,  sued  on  an  instrument  in  writing,  denied 
the  execution  of  the  instrument,  by  plea  verified  by  affidavit, 
such  plea  also  put  in  issue  the  joint  liability;  but  that  if  the 
writing  was  not  denied,  or  the  action  was  not  on  a  writing, 
then  the  joint  liability  could  only  be  put  in  issue  by  plea 

'2  Starr    &    Curtis     1800;     Rev.  Rosenberg    v.     Barrett,    2  Bradw. 

Stat.   (1893),  1075;  Rev.  Stat.  (1895),  386;    Zuel  v.   Boicen,    78   111.    234; 

1159;  Goodenow  v.  Jones,  75  III.  48;  Smith  v.  Knight,  71  111.  148. 
16 


242  DEFENSES   TO   THE    ACTION   OF   ASSUMPSIT. 

in  abatement.'  In  another  case,  however,  which  was  an  action 
on  a  promissory  note,  where  one  of  the  defendants  pleaded 
non  assumpsit,  verified  by  affidavit,  it  was  said  that  this  did 
not  put  in  issue  the  joint  liability,  w^hich  could  only  be  done 
by  plea  in  abatement;^  and  the  same  thing  was  said,  as  to  the 
necessity  of  a  plea  in  abatement,  in  another  case  (which  w^as  not, 
however,  an  action  on  a  writing),  where  non  assumpsit,  verified 
by  affidavit,  was  pleaded  by  one  of  two  defendants.* 

Where  several  persons  are  sued  as  joint  makers  of  a  prom- 
issory note,  the  production  of  a  note  signed  at  the  foot  by  two 
of  the  defendants,  the  name  of  the  other  appearing  on  the  back, 
\7\\\,  prima  facie,  support  the  declaration;  and  in  the  absence 
of  a  sworn  plea  by  the  party  whose  name  appears  on  the  back, 
he  can  not  deny  that  he  was  a  joint  maker  of  the  note." 

See  the  observations  (especially  as  to  the  affidavit),  and  the 
cases  noted,  under  the  head  of  "  Pleas,  etc.,  denying  execu- 
tion of  written  instruments,"  ante,  and  the  additional  cases 
noted  below; "  also  the  remarks  under  the  head  of  pleas  in 
abatement,  ante. 

Plea  of  iiul  tiel  corporation. — The  plea  of  nul  tiel  cor- 
poration appears  to  be  of  modern  introduction.  It  is  not  to  be 
found  in  the  older  books  on  pleading,  though  now  in  common 
use.  Formerly  it  was  held,  that  where  a  private  corporation 
sued,  either  on  a  contract  or  to  recover  real  property,  it  must, 
at  the  trial  under  the  general  issue,  show  that  it  was  a  cor- 
poration, or  be  non-suited;  but  the  rule  now  prevails  that  in  a 
suit  brought  by  a  corporation,  the  defendant,  by  pleading  the 
general  issue,  admits  the  capacity  of  the  plaintiff  to  sue.  If 
he  would  deny  the  existence  of  the  corporation,  he  must  put 
in  a  plea  for  that  purpose.*     It  can  not  be  put  in  issue  by  the 

>  Warren  v.  Chambers,  13  111.  134;  43111.  134;  Gardner  x.  N.  W.  M.  Co., 

Zuel  V.  Botoen,  78  111.  334.  53  111.  367. 
^Shufeldt  V.  Seymour,  31  111.  534.  ^  Mclntire  v.  Preston,  5  Gilm.  48; 

3  McKinney  v.  Peck,  38  111.  174.  Morris  v.  Tinistees,  15  111.  266;  Spang- 

^Lincolnv.Hmzey,  51  m.  435.  ler  v.  Ry.  Co.,  21  lU.    277;   Hoereth 

6  Petrie  v.  Neicell,  13  111.  647;  Still-  v.  Mill  Co.,  30  111.  151;    Legnard  v. 

son  V.  Hill,  18  111.  363;  Robinson  v.  Crane  Co.,  54  111.  App.  149;    Bailey 

Magarity,  38    111.    423;  Warren    v.  v.  Bank,  137  111.  333. 

Ball,  37  111.  76;  Governor  v.  Lagow, 


DEFENSES   TO   THE    ACTION   OF    ASSUMPSIT.  2-13 

general  issue,  and  notice  denying  that  the  plaintiff  is  a  cor- 
poration.' 

Where  the  plaintiff  sues  as  a  corporation,  no  further  allega- 
tion that  it  is  such  is  necessary."  But  where  a  chartered  com- 
pany seeks  to  enforce  rights  which  do  not  ordinarily  and 
necessarily  belong  to  such  corporations,  it  must  set  forth  and 
prove  its  authority  for  so  doing.* 

A  plea  of  7nd  tiel  corporation  is  a  plea  in  bar,  and  may  be 
interposed  with  other  pleas.  Where  a  corporation  sues  by  a 
wrong  name,  the  defendant  can  only  take  advantageof  it  by  a 
plea  in  abatement;  but  where  there  is  no  misnomer,  he  can 
onl}^  plead  nul  tiel  corporation  in  bar.*  The  issue  on  the  plea 
is  for  the  court  and  not  for  a  jury.* 

In  an  action  of  replevin,  where  the  defendant  justified  the 
taking  of  the  property  as  collector  of  taxes  for  a  municipal 
corporation,  and  the  plaintiff  replied  that  there  was  no  such 
corporation  as  that  for  which  the  defendant  claimed  to  be  col- 
lector of  taxes,  the  replication  Avas  held  bad,  because  the  ques- 
tion whether  or  not  such  town  had  ever  been  incorporated  or 
had  forfeited  its  franchises,  could  not  be  tried  in  such  collat- 
eral proceeding." 

A  plea  denying  that  the  plaintiff  is  a  corporation  is  overcome 
by  proof  that  the  defendant  sold  land  to  the  plaintiff,  and 
made  and  delivered  to  it  a  deed  of  convevance,  thus  recoo-niz- 
ing  the  plaintiff  as  a  corporation.^  Where  certain  persons, 
composing  an  association  under  a  name  which  imports  a  cor- 
porate existence,   exercise  corporate  powers   by  that  name, 

'  Bailey  v.  Batik,  127  111.  333.  « 1  Chit.   PI.  557;    Brady  v.  Com- 

^Frye  v.  Bank,  5  Gilm.  332;  Har-  monw.  1  Bibb.  517;  Eppes  v.  Smith, 

rut  V.  Mfg.  Co.,  4  Blackf.  (Ind.)  267;  4  Murf.  4G6;  Bourcher  v.   Wilbour- 

see  Mclntire  v.  Prestoji,  5  Gilm.  48.  son,  1  Dana  227. 

^ Fryer.  Bank,  5  Gilm.  332.  «  Coal  Co.  v.  Andreivs,  53  111.  176; 


*noereth  v.  Mill  Co.,  30  111.  151 

Mellor  V.  Spateman,  1  Saund.  340 

Society  v.    Pawlett,   4  Peters,  501 

Stoddard  v.  Church,   12  Barb.  573 


see  Broivn  v.    Mortgage    Co.,   110 

111.  235;  Osborn  v.   People,   103  111. 

224;  Ry.  Co.  v.  Shires,  108  111.  617. 

''Wood  V.    Coal  Co.,  48  111.   356: 


see  Express    Co.   v.    Haggard,    37  Mix  v.  Bank,  91  111.    20;  Mitchell  v. 

III.  465;    Osborn  v.  People,  103  111.  Deeds,  49  111.  416:  Lo?n6ard  v.  Cong. 

224;  Hudson  v.  Seminary,  113  111.  64  111.  477. 
618. 


2-i4:  DEFENSES   TO   THE   ACTION   OF   ASSUMPSIT. 

they  sliould  not  be  heard  to  deny  that  there  is  any  such  cor- 
poration.' 

No.  140.    Plea  of  mil  tiel  corporation. 

(.-Is  in  No.  S5  ante,  to  the  asterisk,  and  thence  as  foUoics:)  that  there  is 
not,  nor  was  at  the  time  of  the  commencement  of  this  suit,  any  such  cor- 
poration as    the company,  as  by  the  said    declaration  is    above 

supposed:    And  of  this  the  defendant  puts  himself  upon  the  country,  etc. 

PLEA  OF  PUIS  DARREIN  CONTINUANCE. 

A  plea  puis  darrein  continuance  must  show  some  matter  of 
defense  which  has  arisen  since  the  last  continuance — that  is, 
since  the  last  stage  of  the  suit;  and  it  is  said  that  the  day  of  con- 
tinuance, and  the  time  and  place  when  and  where  the  matter 
of  defense  arose  must  be  set  forth.  Great  certainty  is  requisite 
in  pleas  of  this  description.' 

A  plea  of  this  kind  involves  grave  legal  consequences  that 
do  not  attach  to  an  ordinary  plea.  It  only  questions  the 
plaintiff's  right  to  further  maintain  the  suit.  When  filed,  it, 
by  operation  of  law,  supersedes  all  other  pleas  and  defenses  in 
the  cause,  and  the  parties  proceed  to  settle  the  pleadings 
de  novo  just  as  though  no  plea  or  pleas  had  theretofore  been 
filed  in  the  cause.  By  reason  of  pleas  of  this  kind  having  a 
tendency  to  delay,  great  strictness  is  required  in  framing  them." 

There  is  a  distinction  to  be  observed  between  a  plea  setting 
up  matter  of  defense  which  has  arisen  since  the  commencement 
of  the  action,  but  before  plea  pleaded,  and  one  alleging  matter 
of  defense  which  has  arisen  after  plea  pleaded.  The  former  is 
not,  properly  speaking,  di  plea  puis  darrein  continuance.*  It  is 
said  that"  when  matter  of  defense  has  arisen  after  the  commence- 
ment of  the  suit  it  can  not  be  pleaded  in  bar  of  the  action  gen- 
erally, but  must,  when  it  has  arisen  before  plea  or  continuance, 

'  Express  Co.  v.  Bedbury,  34  111.  3  Gilm.    99;    Ryholt  v.   Milliken,  5 

459;     Powder  Co.   v.  Hotchkiss,  17  Bradw.   490;   Straight  v.  Hancheft, 

111.  App.  622;  By.  Co.  v.  Ry.  Co.,  75  23  III.  App.  584. 

111.    113;    Thompson  v.   Candor,  m  ^  Mount  \.  Scholes,  \2(il\\.%M. 

111.  244;  Hudson  v,   Semi7iary,  \IS  *  Ken  yon  y.  Sutherland,   3  Gilm. 

111.  618;    Fitzpatrick   v.   Butter,  58  99;  Lincoln  v.   McLaughlin,  74  111. 

111.  App.  532.  11:  Gibson  v.  Bourland,  13  111.  App. 

«  Boss  V.    Nesbit,   2  Gilm.    252;  1  352. 
Chit.  PI.  572;  Kenyon  v.  Sutherland, 


DEFENSES   TO   THE    ACTION   OF    ASSUMPSIT.  215 

be  pleaded  as  to  the  further  maintenance  of  the  suit,  and  when 
it  has  arisen  after  issue  joined,  puis  darrein  coritinuancer ' 
In  an  action  on  the  case,  however,  the  defendant  is  permitted 
under  the  general  issue  to  give  in  evidence  a  release,  a  former 
recovery,  a  satisfaction  or  any  other  matter  ^a?  post  facto  w^hich 
shows  that  the  cause  of  action  has  been  discharged.^  The  issues 
joined  may  be  either  of  law  or  of  fact."  Matter  of  defense 
arising  after  plea  pleaded  can  only  be  taken  advantage  of  by 
plea  of  the  kind  last  mentioned.* 

Pleas  puis  darrein  continuance  may  be  either  in  abatement 
or  bar,  according  to  the  subject-matter,  and  if  anything  happens 
pending  the  suit  wdiicli  would  in  effect  abate  it,  this  may  be 
pleaded  puis  darrein  continuance  though  there  has  been  a  plea 
in  bar.^  A  plea  in  abatement  of  this  kind  begins  and  con- 
cludes like  a  plea  in  abatement  w^hen  pleaded  in  the  first  in- 
stance,® If  matter  in  abatement  is  pleaded  ptuis  darrein  con- 
tinuance the  judgment,  if  against  the  defendant,  is  peremptory, 
as  w^ell  on  demurrer  as  on  trial.'  A  plea  puis  darrein  contin- 
loance  is  a  waiver  of  any  former  plea  or  pleas.'  It  is  said  that 
there  can  be  but  one  plea  of  this  kind  in  one  and  the  same 
cause.* 

A  settlement  and  release  of  a  cause  of  action,  an  accord  and 
satisfaction,  or  other  matter  arising  after  the  last  pleading 
which  goes  simply  in  discharge  of  the  original  cause  of  action, 
must  generally  be  availed  of  by  plea  puis  darrein  continuance. 

1  1  Chit.  PI.  569;  Rowell  v.  Hay-  ^  Gould's  PI.  247;  1  Chit.  PI.  571. 
den,  40  Me.  582;  Yeaton  v.  Lyman,  ^  Gould's  PI.  347;  see  1  Chit.  Pi. 
5  Peters  224;  Cornell  v.    Weston,  20      572. 

Johns.  414;  see  Kenyan  v.  Suther-  ">  1  Chit.  PL  571;  Renner  v.  Mar- 
land,  3  Gilm.  99;    City  v.  Bahcock,  shall,  1  Wheat.  215. 
143I11.;358;  3Ioimt  v.  ScJioles,  120  III  M  chit.  PI.  571;  Gould's  PI.  347; 
394;     Straight  Y.  HancJiett,   23  111.  Wallace  v.  3IcConnell,  IS  Peters  VSQ; 
App.  584.  Good  v.  Davis,  1  Hemp.  16;  Adlerv. 

2  City  V.  Bahcock,  143  111.  358.  Wise,  4  Wis.  159;  Mount  v.  Scholes, 

3  Gould's  PI.  346;    1   Chit.  PI.  569.  120   111.  894;    City  v.  Renshaii\  153 

4  Longworth  v.  Flagg,  10  Ohio  300;  111.  491;  Ryan  v,  R.  R.  Co.,  60  III. 
Allen  V.  Newberry,  8  Clarke  (Iowa),  App.  612, 

65;    Jessup    v.    King,    4    Cal.    331;  M  Chit.    PI.  572,  573:  Gould's  PL 

McDougalv.  Rutherford,  30  Ala.  253:      347;  City  v.  Renshaw,  153  111.  491. 
see   Stephen's   PL    64;    Gould's    PL 
345-348;  1  Chit,  PI.  569-573. 


24:6  DEFENSES    TO   THE    ACTION    OF   ASSUMPSIT. 

But  when  the  parties  seek  not  only  to  adjust  the  amount  of  the 
claim,  but  further,  to  have  judgment  entered  for  such  amount, 
the  court  may,  on  motion,  execute  the  agreement  by  giving 
judgment  in  pursuance  thereof.' 

Where  issue  is  taken  on  a  plea  of  payment  and  satisfaction  of 
this  description,  evidence  of  a  settlement  of  accounts,  and  pay- 
ment of  the  amount  found  due,  is  admissible;  so  is  an  order  from 
the  plaintiff,  to  his  attorney  of  record,  to  discontinue  the  suit.' 

Regularly,  if  the  defendant  suffers  another  continuance  to 
intervene  before  he  pleads  the  new  matter — does  not  plead  it 
at  the  first  opportunity  after  the  happening  of  it — he  waives 
it,  and  can  not  afterward  plead  it.'  But  whether  or  not  a  plea 
of  this  kind  shall  be  pleaded  after  a  continuance  has  intervened 
is  in  the  discretion  of  the  court,'  which  may  give  leave  to  plead 
it  nunc  pro  tunc;  and  when  the  court  thus  exercises  its  discre- 
tion, it  may  impose  the  payment  of  costs.^ 

It  is  said  that  no  plea  inds  darrein  continuance  can  be 
pleaded  after  a  demurrer  determined,  or  verdict  found,"  though 
it  may  after  the  jury  has  gone  from  the  bar.'  But  in  a  case  in 
Illinois,  where  the  defendant  Avas  sued  in  an  action  of  debt  on 
a  statute,  for  the  penalty,  and  after  verdict  against  him,  but 
before  judgment,  the  legislature  passed  an  act  releasing  all 
penalties  incurred  under  that  statute  (including  those  sued  for), 
it  was  held  that  this  might  be  pleaded  jpwis  darrein  contin- 
tiance;  *  and  in  New  York  an  insolvent  has  been  allowed  to 
plead  his  discharge  even  after  verdict.* 

Such  plea  may,  in  Illinois,  be  filed  at  any  time  before  trial.'" 
Fleas  after  the  last  continuance  must  be  verified  by  affidavit;" 
but  it  is  held  in  Illinois  that  pleas  of  this  kind  in  har  need  not 
be  so  verified.'^ 

» Washington  v.  By.  Co. ,  13G  111.  49.  ''  1  Chit.  PI.  572. 

*  Neil  V.  Hepburn,  6  Ohio  534.  ^  Coles  v.  County,  Breese  154. 

sGould'sPl.  346.  ^Bank  v.  Hazard,^  Johns.  393; 

*Eoicell  V.   Hayden,  40  Me.  582;  Mount  w.  Sclioles,\20l\\.ZU. 
Morganv.  Dyer,  m  Johns.  l&U  Tufts  ^^  City  v.   Renshaw,    153  111.491; 

V.  Gibbons,  19  Wend.  639;  Rangley  Robinson  v.  Burkell,  2  Scam.  378. 
V.  Webster,  11  N.  H.  299.  "  1  Chit.  PI.  660;  Mount  v.  Scholes, 

n  Chit.  PI.  571;  Stevens  v.  TJiomp-  120  111.  394. 
S071,  15  N.  H.  510.  ''^  Robinson   v.    Burkell,  2   Scam. 

6  Gould's  PI.  347;  1  Chit.  PI.  473.  278;  see  Ross  v.  Nesbitt,  2  Gilm.  252. 


DEFENSES   TO  THE    ACTION -OF   ASSUMPSIT.  247 

The  following  form  of  a  plea  of  this  kind  is  given  in  Chitty 
on  Pleading,  vol.  3,  page  1238. 

{Title  of  court,  etc.)    And  now  at  this  day,  that  is  to  say,  on next 

after ,  in  this  same  term,  until  whicli  day  the  plea  aforesaid  was  last 

continued,  comes  the  said  A,  B.,  by ,  liis  attorney,  and  the  said  C.  D., 

by  his  attorney  aforesaid;  and  the  said  C.  D.  saith  that  the  said  A.  B.  ought 
not  further  to  have  or  maintain  his  aforesaid  action  thereof  against  him, 
because  he  saith,  that  after  the  last  continuance  of  this  cause,  that  is  to  say 

after next  after ,  in  this  same  term,  from  wliich  day  this  cause  was 

last  continued,  and  before  this  day,  to  wit,  on,  etc.,  at,  etc.,  he,  the  said 
A.  B.  (here  state  the  release,  *  *  *  or  other  subject-viatter  of  the  plea;)  ami 
this  he,  the  said  C.  D.,  is  ready  to  verify;  wherefore  he  prays  judgment  if 
the  said  A.  B.  ought  further  to  have  or  maintain  his  aforesaid  action  there- 
of against  him,  etc. 

The  following  form  of  a  plea,  denominated  a  ^^  jplea  to  the 
further  maintenanee  of  the  action^  is  given  in  Andrews' 
Stephen's  Pleading,  page  156. 

(TYfZe  of  court,  etc.)  The  said  defendant,  by  his  attorney  \or  in  person], 
says,  that  the  said  plaintiff  ought  not  further  to  have  or  maintain  his  afore- 
said action  against  him;  because,  he  says,  that  after  the  last  pleading  in  this 

cause,  that  is  to  say,  on  the day  of ,  in  the  year  of  our  Lord , 

the  said  plaintiff,  by  his  certain  deed  of  release,  sealed  with  his  seal,  [the 
release  niaj^  be  here  stated,  *  *  *  ].  And  this  the  said  defendant  is 
ready  to  verify.  Wherefore  he  prays  judgment  if  the  said  plaintiff  ought 
further  to  have  or  maintain  his  aforesaid  action  against  him,  etc. 

It  is  submitted  that  the  following  form  is  suited  to  our 
mode  of  practice,  and  is  sufficient. 

No.  141.    Plea  puis  darrein  continuance. 

In  the Court. 

Term,  18—. 

C.  D.  ) 
ats.    V  Assumpsit. 

A.  B.  )      And  now  on  this day  of ,  in  this  same  term,  comes  the 

defendant,  by  Ms  attorney  aforesaid,  and  says  that  the  plaintiff  ought  not 
further  to  maintain  his  aforesaid  action  against  him,  the  defendant,  because 
he  says,  that  after  the  last  pleading  {or,  if  there  tcere  any  proceedings  after 
the  last  pleading,  say  "  after  the  last  proceedings  " ),  in  this  cause,  that  is 

to  say,  after  the day  of ,  in  the term  last  past,  {or,  "  in  this 

same  term,")  and  before  this  day,  to  wit,  on,  etc.,  {Iiere  set  forth  the  sub- 
ject-matter of  the  pilca,  as  a  release,  or  an  atcard,  or  a  revocation  of  letters 
of  administration,  etc.)  And  this  the  defendant  is  ready  to  verify;  where- 
fore he  prays  judgment  if  the  plaintiff  ought  further  to  maintain  his  afore- 
said action,  etc. 


CHAPTER  YL 

ACCOUNT. 

The  elementary  works  which  treat  of  the  action  of  account, 
and  almost  every  case  relating  thereto,  inform  us  that  it  is  an 
action  seldom  brought.  In  England  it  seems  to  have  fallen 
almost  entirely  into  disuse;  and  although  the  action  is  ex- 
pressly authorized  by  the  statute,  a  case  is  seldom  to  be  met 
with  in  the  courts  of  Illinois.^ 

Frequently,  where  this  remedy  applies,  the  matters  of  ac- 
count are  of  an  intricate  and  complicated  character,  involving 
various  interests,  and  the  parties  choose  rather  to  resort  to  a 
court  of  chancery,  where  all  the  interests  involved  can  be 
more  satisfactorily  adjusted  and  settled.^  This  action  has, 
however,  in  Illinois,  some  advantages  over  proceedings  in 
chancery,  which  should  not  be  overlooked.  It  may,  under  cer- 
tain circumstances,  be  commenced  by  attachment^  or  by  capias,* 
thus  affording  to  the  plaintiff  the  advantage  of  those  writs, 
which  may  give  him  more  speedy  means  of  securing  his  claim 
than  can  be  given  in  equity.  It  will  be  observed  that  the 
third  section  of  the  statute  provides  that  if  the  defendant  does 
not  appear  at  the  return  of  the  writ,  he  shall  be  attached  by 
his  body  to  appear  and  render  his  account. 

The  provisions  of  the  Illinois  statute  of  account,  in  respect 
to  when  this  action  may  be  maintained,  are  given  below. 

Joint  tenants,  etc.,  to  account. — ^Section  1  provides  "  that 
where  one  or  more  joint  tenants,  tenants  in  common,  or  copar- 
ceners in  real  estate,  or  any  interest  therein,  shall  take  and 

'Lee  V.  Abrams,  12  111.  110;  see  ^Humphreys  v.  Matthews,  11  111. 
Bracken  v.  Kennedy,  3  Scam.  558.  471. 

2  See  Lee  v.  Abrams,   12  111.    110;  «1  Starr  &  Curtis  357;  Rev,  Stat. 

Bracken  v.  Kennedy,  3  Scam.  558.  (1893),  190;  Rev.  Stat.  (1895),  193. 

(248) 


ACCOUNT.  249 

use  the  profits  or  benefits  thereof,  in  greater  proportion  than 
his,  her  or  their  interest,  such  person  or  persons,  his,  her  or 
their  executors  and  administrators,  shall  account  therefor  to 
his  or  their  co-tenant,  jointly  or  severally." '  A  tenant  in  com- 
mon can  not  sue  his  co-tenant  for  his  proportion  of  rents,  in 
assumpsit.  His  only  remedy  is  by  action  of  account  under 
the  statute,  or  by  bill  in  chancery," 

By  whom  brought. — Section  2  provides  that  the  action  of 
account  may  be  sustained — 

First.  By  one  joint  tenant,  tenant  in  common  or  coparce- 
ner, his  or  her  executor  or  administrator,  against  the  other  or 
others,  who  receive,  as  bailiffs,  more  than  his  or  their  due  pro- 
portion of  the  profits  or  benefits  of  such  estate. 

Second.  By  an  executor,  or  an  administrator  with  the  will 
annexed,  being  residuary  legatees  against  the  co-executor,  or 
co-administrator  with  the  will  annexed. 

Third.  By  a  residuary  legatee  against  executors  and  ad- 
ministrators. 

Fourth.  By  and  against  executors  and  administrators,  in  all 
cases  in  which  the  same  might  have  been  maintained  by  and 
ao:ainst  their  testator  or  intestate. 

Fifth.  ]^Y  one  or  more  co-partner  or  co-partners  against  the 
other  co-partner  or  co-partners,  to  settle,  and  adjust  their  co- 
partnership accounts  and  dealings,  making  all  said  co-partners 
parties  to  said  action,  either  as  plaintiffs  or  defendants. 

Sixth.     On  book  account. 

Under  this  section  the  right  of  action  is  enlarged  so  that  it 
may  be  maintained  on  book  accounts.^  The  action  may  be 
maintained  by  one  partner  against  another  partner  or  partners, 
to  settle  and  adjust  partnership  accounts,  and  may  be  so  main- 
tained immediately  upon  the  dissolution  of  the  partnership, 
and  without  any  previous  adjustment  of  the  accounts.* 

Compelling  account. — Section  3  provides  that  when  any 
person  is  or  shall  be  liable  to  account  as  guardian,  bailiff  or 
receiver,   or   otherwise,  to  another,  and  will    not    give     an 

11  Starr  &  Curtis  187;  Rev.    Stat,  ^  Garrity  v.  HamburgJier,  136  111. 

(1893),  104;  Rev.  Stat.  (1895),  104;  see  499. 

Woolleyv.  Schracler,  116  III.  29.  ^  Horn  v.  Ingraham,  125  111.198; 

"  Crow  v.  Mark,  52  111.  333.  Bonney  v.  Stoughton,  122  111.  536. 


250  ACCOUNT. 

account  willingly,  the  party  to  whom  such  an  account  ought 
to  be  made,  may  bring  his  or  her  action  of  account;  and  if 
the  person  against  whom  such  action  may  be  brought  be  sum- 
moned, and  does  not  appear  at  the  return  of  the  writ,  and 
abide  the  order  of  the  court,  then  such  defendant  shall  be  at- 
tached by  his  body  to  appear  and  render  his  account. 

Process, — Section  4  provides  that  the  original  process  in 
actions  of  account  shall  be  the  same  as  is  or  may  be  provided 
by  law  for  other  personal  actions,  and  shall  be  served  and 
returned  in  the  same  manner. 

Form  of  declaration. — Section  5  provides  that  the  declara- 
tion in  an  action  on  book  account,  (except  the  commencement 
and  conclusion,)  may  be  in  the  following  form,  to  wit : 

In  a  plea  that  the  defendant  render  to  the  plaintiff  the  sum  of dollars, 

which  the  plaintiff  says  is  justly  due  from  the  defendant,  to  balance 
book  accounts  between  them,  as  by  the  plaintiff's  original  book,  ready  to  be 
produced  in  court,  may  appear:  Now  the  plaintiff  says  that  the  defendant, 
though  often  requested,  has  ever  refused,  and  still  does  refuse,  to  settle  and 
adjust  the  account  of  the  plaintiff,  or  to  pay  the  balance  thereon  due. 

Trial — Judgment.^-Section  6  provides  that  "  If  the  de- 
fendant in  an  action  of  account  shall  plead  in  defense  any 
plea,  which  being  true,  he  ought  not  to  account,  the  issue 
thereon  may  be  tried  by  a  jury,  and  if  a  verdict  be  found 
ao-ainst  him,  or  if  such  defendant  shall  not  appear,  or  appear- 
ino-,  shall  confess  that  he  ought  to  account  with  the  plaintiff, 
the  court  shall  render  judgment  that  he  do  account."  ^ 

The  only  plea  in  bar  to  an  action  of  account  which  may  be 
interposed  before  the  court,  is  one  which  shows  that  the  defend- 
ant is  not  then  liable  to  account  to  the  plaintiff,  and  no  such 
plea  can  be  tiled  after  the  entry  of  the  interlocutory  judgment 
to  account.  In  such  case  no  plea  to  the  declaration  is  needed, 
and  no  issue  is  required  to  be  made  up  thereon.^  l^o  formal 
pleas  are  allowed  before  the  auditors.^ 

The  only  issue  before  the  court  is  whether  there  should  be 
an  accounting.     Evidence  is  therefore  inadmissible  before  the 

'  See  Garrity  v.  Hamburger  Co.,  *  Ihid.,  136  III.  499;  Lockicood  v. 

136  111.  499.  Doane,  107  111.  235;  Culver  v.  Elwdl, 

2  Ihid.,  136  111.  499.  73  111.  536. 


ACCOUNT.  251 

court  as  to  whether  or  not  profits  had  accrued,  or  whether  one 
tenant  in  common  or  joint  tenant  had  received  more  than  his 
share.' 

The  judgment  qiLod  computet  merely  determines  the  defend- 
ant's liability  to  account,  but  determines  nothing  as  to  what 
may  be  due  after  account  taken.  If  the  liability  to  account  is 
denied,  the  issue  may  be  tried  by  a  jury.* 

Auditors.  —  Section  7  provides  that  "Whenever  a  judg- 
ment shall  be  rendered  against  any  defendant  that  he  accounts, 
the  court  shall  appoint  one  or  more  able,  disinterested  and 
judicious  men  as  auditors,  to  hear,  examine  and  adjust  the 
accounts  between  the  parties,  who  shall,  before  they  enter  on 
their  duties,  be  sworn  faithfully  and  impartially  to  take  and 
state  the  account  between  the  parties,  and  make  report  to  the 
court." 

In  the  absence  of  any  showing  otherwise,  it  will  be  pre- 
sumed that  the  auditors  took  the  requisite  oath  to  faithfully 
and  impartially  take  and  state  the  account  between  the  par- 
ties.' The  requirement  that  an  auditor,  in  an  action  of 
account,  shall  be  sworn  before  entering  upon  his  duties  is  not 
jurisdictional,  but  is  one  that  may  be  waived  by  the  parties; 
and  the  appearance  of  the  parties  before  the  auditor,  and  the 
examination  of  witnesses,  without  objection  that  he  is  not 
sworn,  will  constitute  such  waiver,  and  the  fact  that  one 
appointed  an  auditor  in  an  action  of  account  is  also  a  master  in 
chancery  of  the  same  court  in  which  the  action  at  law  is  pend- 
ing, will  not  relieve  him  of  the  necessity  of  being  sworn,  if 
there  be  no  waiver  of  the  oath  before  entering  upon  the  dis- 
charge of  his  duties." 

Hearing  before  auditors —Notice— Default.  —  Section  8 
provides  that  "  Such  auditors,  or  a  majority  of  them,  shall 
have  power  to  appoint  the  time  and  place  for  the  hearing,  and 
shall  cause  reasonable  notice  thereof  to  be  given  to  the  parties, 
and  if  the  defendant  shall  fail  or   refuse  to  attend  at  the  time 

1  Hawley  v.  Burde,  6  Bradw,  454.  ^  Garrity  v.  Hamburger,  136  III. 

« Pardridge  v.  Ryan,  134  111.  247;  499. 

Garrity  v.  Hamburger  Co.,  136  III.  *  Pardridge  v.  Ryan,  134  lU.  247. 
499;  Lee  v.  Yanaway,  52  111.  App.  23. 


252  ACCOUNT. 

and  place  appointed,  and  render  his  account,  or  appearing, 
shall  not  render  an  account,  the  auditors  shall  proceed  to  take 
the  account,  and  shall  award  to  the  party  appearing  such  sum 
as,  on  his  showing,  shall  appear  to  be  justly  due,  which  show- 
ing shall  be  on  the  oath  of  the  party,  or  other  evidence,  as  the 
nature  of  the  case  may  require  or  admit." 

Administering  oaths— Witnesses. — Section  9  provides  that 
any  auditor,  so  appointed,  may  administer  all  necessary  oaths 
or  affirmations,  either  to  parties  or  witnesses,  in  the  hearing 
and  examination  of  such  accounts,  and  require,  by  subpa3nas, 
the  attendance  of  such  witnesses  and  the  production  of  such 
books  and  papers  as  may  be  required  by  either  party. 

Taking  account — Testimony— Compelling  witnesses.— 
Section  10  provides  that  "  at  the  time  and  place  of  the  hearing, 
such  auditors,  or  a  majority  of  them,  shall  proceed  to  take  and 
state  the  accounts,  and  take  the  testimony  of  witnesses,  and 
examine  either  or  all  of  the  parties,  on  oath,  respecting  any  ac- 
count or  item  thereof  submitted  by  either  party,  and  compel 
the  attendance  of  witnesses  and  production  of  books  and 
papers.  If  either  party  or  any  witness  shall  refuse  to  be  sworn 
or  answer  proper  questions  respecting  said  accounts,  or  any 
item  thereof,  the  auditors,  or  a  majority  of  them,  may  report 
the  same  to  the  court,  and  the  court  shall  commit  him  to  jail, 
there  to  remain  until  he  consent  to  be  sworn,  or  answer  the 
interrogatories,  or  be  discharged  by  the  court  according  to  law; 
or  if  any  party  shall  refuse  to  be  sworn  or  to  answer  directly 
anv  question  put  by  the  auditors  or  under  their  direction,  such 
refusal,  relative  to  the  particular  matter  to  which  oath  or 
answer  is  required,  shall  be  taken  against  the  party  so  refusing." 

The  statute  contemplates  that  the  auditors  shall  hear  the 
evidence  and  pass  upon  questions  of  fact,  and  if  any  question 
of  law  arises  upon  which  they  deem  it  advisable  to  take  the 
opinion  of  the  court,  it  may  be  done  by  having  the  question 
certified  to  the  court  and  there  decided.'  The  admission  of 
incompetent  and  improper  evidence  before  the  auditor  will  not 
require  the  court  to  set  aside  the  report,  when  there  appears 
sufficient  competent  evidence  to  sustain  the  auditor's  finding.^ 

1  Garrity  v.  Hamburger,   136  111.  *  Pardridge  v.  Ryan,  134  111.  247. 

499. 


ACCOUNT.  253 

Adjusting  accounts — Report — Judgment — Costs. — Section 
11  provides  that  tlie  '"auditors,  or  a  majority  of  them,  shall 
liquidate  and  adjust  the  accounts  and  state  the  balance,  and  to 
whom  due,  and  make  report  to  the  court,  and  if  no  just  cause 
be  shown  to  the  contrary,  after  the  same  shall  be  approved  by 
the  court,  judgment  shall  be  rendered  on  such  report  for  such 
sum  as  shall  be  found  in  arrear  from  either  party,  with  costs; 
and  the  party  in  favor  of  whom  the  report  is  made  shall  pay 
the  auditors  their  fees,  to  be  fixed  by  the  court,  which  shall  be 
taxed  as  costs." 

Where  the  liability  to  account  is  conceded,  the  judgment 
quod  comjnitet  is  the  only  one  that  can  be  entered  prior  to  the 
coming  in  of  the  auditor's  report,'  and  the  final  judgment  then 
entered  is  based  upon  the  auditor's  report,  and  only  indirectly 
upon  the  declaration.^ 

Producing  books. — Section  12  provides  "that  the  court  be- 
fore which  the  action  shall  be  pending,  and  also  the  auditors  so 
appointed,  or  a  majority  of  them,  may  call  upon  either  party  to 
produce,  at  any  time  pending  the  suit,  either  his  ledger  or  orig- 
inal book  of  entries,  or  both,  as  they  may  think  proper,  and  no 
disputed  account  shall  be  allowed  upon  the  oath  of  the  party, 
when  it  shall  appear  that  he  has  an  original  book  of  entries, 
unless  such  book  shall  be  produced  upon  reasonable  request." 

Consolidation  of  accounts. — Section  13  provides  that  "  the 
auditors  appointed  in  any  action  of  account,  in  hearing, 
examining  and  adjusting  the  accounts  of  the  parties,  shall 
hear,  examine  and  adjust  all  the  accounts  existing  between 
them  of  a  similar  nature,  and  in  the  same  right,  to  the  time  of 
such  hearing,  including  all  questions  of  interest  thereon^" 

Notice  of  hearing. — Section  14  provides  that  "  the  audi- 
tors may  notify  the  parties  of  the  time  and  place  of  hearing 
by  causing  them,  or  either  of  their  attorneys  of  record,  to  be 
personally  notified,  or  by  citation,  left  at  such  parties'  usual 
abode,  at  least  ten  days  previous  to  the  time  of  such  hearing; 
and  if  the  party  have  no  domicile  in  this  state,  and  have  no 
attorney  of  record,  by  leaving  such  citation  in  the  oflice  of  the 

'  Garrity  v.  Hamburger,  136  111.  ^  Qarrity  v.  Hamburger,  136  111. 

499;  Pardridge  v.  Ryan,  134  111.  247 .      499. 


254  ACCOUNT. 

clerk  of  the  court  in  which  such  action  shall  be  pending, 
at  least  thirty  days  before  the  time  of  hearing,  which  shall  be 
deemed  sufficient  notice." 

Continuances. — Section  15  provides  that  "the  auditors  may 
continue  the  hearing  of  r.ny  account  from  time  to  time,  in 
their  discretion." 

Pleadings. — Section  16  provides  that  "  no  formal  pleading 
shall  be  allowed  to  be  filed  before  the  auditors  who  may  be 
appointed  to  take  and  state  an  account  between  the  parties  in 
any  action  of  account."  ' 

Accounting  before  justices. — Section  17  provides  that  "  jus- 
tices of  the  peace  shall  have  jurisdiction  in  all  actions  on  book 
account  where  the  amount  of  the  balance  owing  to  the  plaintiff 
shall  not  exceed  $200;  and  in  such  actions  brought  before  a  jus- 
tice of  the  peace,  on  book  account,  or  when  any  book  account 
shall  be  pleaded  in  offset  before  a  justice  of  the  peace,  such 
justice  shall  have  the  same  power  to  examine  parties  under 
oath  that  is  given  to  auditors  under  this  act." 

Jurisdiction. — Section  18  provides  that  "  in  all  cases  com- 
menced under  the  first,  fourth  and  fifth  enumerations  in  section 
2  of  this  act,  the  several  courts  of  record  in  this  state  having 
chancery  jurisdiction  are  empowered  to  hear,  try  and  determine 
the  same,  to  appoint  auditors  or  commissioners  in  their  discre- 
tion, to  take  testimony  or  to  find  the  state  of  facts,  or  to  take, 
adjust  and  state  accounts  between  said  co-tenants,  co-parceners 
or  co-partners;  and  said  courts  are  also  empowered  to  make  all 
such  orders  and  decrees,  either  interlocutory  or  final,  as  may 
enable  such  courts  to  do  complete  justice  to  all  parties,  and 
such  as  such  courts  sitting  in  chancery  could  lawfully  make  in 
order  to  the  adjustment  and  final  settlement  of  all  co-partner- 
ship accounts,  matters  and  dealings  whatever;  and  such  courts 
shall  render  final  judgment  or  judgments  in  any  such  action  in 
favor  of  or  against  such  co-tenants,  co-parceners  or  co-partners 
respectively,  as  shall  be  just  and  equitable,  and  such  as  said 
courts,  sitting  in  chancery,  might  render,  and  may  enforce  such 

'See  Oarrity  v.  Hamburger,  136  111.  499;  Lockwood  v.  Doane,  107  111.  235; 
Culver  V.  Elwell,  73  111.  536. 


.ACCOUNT.  255 

judgment  or  judgments  by  execution,  or  in  any  other  way  in 
which  such  courts  sitting  in  chancery  could  enforce  the  same." 

Powers  of  auditors. — Section  19  provides  that  "  auditors 
and  commissioners,  appointed  agreeably  to  the  provisions  of 
tho  last  preceding  section,  shall  have  the  same  power  to  admin- 
ister oaths  to  parties  and  witnesses,  and  to  compel  the  attend- 
ance of  witnesses  and  the  production  of  books  and  papers,  and 
the  parties  shall  have  the  same  right  and  be  under  the  same 
obligation  to  testify,  as  is  provided  in  actions  of  account  gen- 
erally." 

Action  on  book  account. — Section  20  provides  that  "  When- 
ever, on  the  trial  of  any  action  on  book  account,  it  shall  appear 
to  the  court  that  any  item  or  items  of  account,  or  deal  be- 
tween the  same  parties,  more  properly  belong  to  some  other 
action  of  account  under  this  act,  the  same  may  be  tried  and 
adjusted  in  said  action  on  book  account." 

If  it  shall  appear  to  the  court  upon  the  trial  of  an  action 
of  assumpsit,  or  other  action,  that  the  trial  more  properly 
belongs  to  an  action  of  account,  it  will  be  competent  for 
the  court  not  only  to  try  and  adjust  the  account  between 
the  parties  in  such  pending  action  the  same  as  though 
brought  as  an  action  of  account,  but  where  no  objection  is 
interposed,  to  adjudge  that  the  form  of  action  be  changed 
to  an  action  of  account.  In  such  case  the  court  may  allow  a 
count  in  the  action  of  assumpsit  to  be  filed,  which  will  be  taken 
as  a  substitute  for  the  original  count  in  assumpsit.* 

Appeal — Error. — Section  21  provides  that  "either  party 
may  appeal  or  prosecute  a  writ  of  error  from  the  final  judg- 
ment rendered  under  and  by  virtue  of  this  act,  in  the  same 
manner  and  upon  the  same  conditions  as  provided  by  law  in 
other  cases." 

An  order  to  account  is  an  interlocutory  order  from  which 
an  appeal  will  not  lie.* 

Chancery  jurisdiction  preserved. — Section  22  provides  that 
"  nothing  in  this  act  contained  shall  be  so  construed  as  to  de- 

'  Garrity  v.  Hamburger,  136    111.      23;   Anderson  v.  Lundburg,  41  111. 
499;  Pardridge  v.  Ryan,  134  111.  247.      App.  248;  Motor  Co.  v.  Lewis,  47  111. 
^  Lee  V.  Yanaway,    52    111.    App.      App.  576. 


256  ACCOUNT. 

prive  courts  of  chancery  of  their  jurisdiction  in  matters  of 
account," 

Suits  between  executors,  etc. — Section  119  of  the  act  on 
administration  provides  that  "  where  there  are  two  or  more  ex- 
ecutors or  administrators  of  an  estate,  .and  anyone  of  them 
takes  all  or  a  greater  part  of  such  estate  and  refuses  to  pay  the 
debts  of  the  decedent,  or  refuses  to  account  with  the  other 
executor  or  administrator,  in  such  case  the  executor  or  admin- 
istrator so  aggrieved  may  have  his  action  of  account  or  suit  in 
equity  against  such  delinquent  executor  or  administrator,  and 
recover  such  proportionate  share  of  said  estate  as  shall  belong 
to  him;  and  every  executor,  being  a  residuary  legatee,  may 
have  an  action  of  account  or  suit  in  equity  aga'nst  his  co-ex- 
ecutor or  co-executors,  and  recover  his  part  of  the  estate  in  his 
or  their  hands.  Any  other  legatee  may  have  the  like  remedy 
against  the  executors ;  provided,  that  before  any  action  shall 
be  commenced  for  legacies  as  aforesaid,  the  court  shall  order 
them  to  be  paid."  ' 

Limitations.— The  action  of  account  is  barred  unless  com- 
menced within  five  years  next  after  the  cause  of  action  shall 
have  accrued,'''  and  it  has  been  held  that  the  right  of  action  by  a 
partner  did  not  accrue  until  the  partnership  had  ceased  to 
exist.^ 

Demand. — A  demand  to  account,  or  something  which 
amounts  to  such  demand,  is  in  general  necessary  to  perfect  the 
cause  of  action.*  But  the  plaintiff  is  not  put  upon  proof  of 
the  demand,  except  by  plea  denying  it;  and  the  plea  of  "  never 
bailiff  "  does  not  have  that  effect.* 

Time  for  which  account  is  to  be  taken. — The  weight  of 
authority  seems  to  sustain  the  rule,  that  even  if  the  period  to 
■which  the  account  is  to  extend  is  specified,  yet  the  account 

'  Rev.  Stat.  (1891)  129;  Rev.  Stat.  *  Chadwick  v.  Dival,  12  Verm.  501; 

(1895)129;  1  Starr  «&  Curtis,  245.  but    see  Sturges  v.    Bush,   5    Day 

^Quayle    v.    Guild,    91    III.    378!  (Conn.)  452. 

Richardson  v.  Grejory,  126  111.  168;  '  Chadwick  v.   Dival,   12    Verin. 

Bonney  v.  Stoughton,  122  111.  536;  501;    see    Stedman    v,   Gassett,  18 

Homey.  Ingraha7n,  125  m.  198.  Verm.    347;    Aiken   v.    Smith,   21 

^Askeiv  v.  Spi'inger,  111  III  662;  Verm.  173. 
Blake  v.  Sweeting,  121  111.  70 


ACCOUNT.  257 

shall  be  brought  down  to  the  time  of  the  award  of  the  auditors, 
without  regard  to  the  time  laid  in  the  declaration.' 

No.  140.    Against  a  bailiff,  to  account  for  goods. 

In  the Court. 

Term,  18—. 

State  of  Illinois,  ) 

County  of .     \  set.     A.  B.,  plaintiff,  by  E.  F.,  his  attorney,  complains 

of  C.  D.,  defendant,  of  a  plea  that  he  render  to  the  plaintiff  a  reasonable 
account  for  the  time  he,  the  defendant,  was  (*)  bailiff  to  the  plaintiff,  in 

the  county  aforesaid:   For  that  whereas  the  defendant,  on  the day 

of ,  in  the  year  18 — ,  and  from  thence  until  the day  of ,  in  the 

year  18 — ,  was  there  bailiff  to  the  plaintiff,  and  during  that  time  there  had 
the  care  and  administration  of  divers  goods  of  the  plaintiff,  to  wit,  sixty 
barrels  of  sugar,  twenty  sacks  of  coffee  and  fifty  sacks  of  salt,  of  the  value 

of dollars,  to  merchandise  and  make  profit  thereof  for  the  plaintiff, 

and  thereof  to  render  him  a  reasonable  account,  when  he,  the  defendant, 
should  be  thereto  requested:  Yet  the  defendant,  though  he  was  afterwards, 
to  wit,  on,  etc.,  there  requested  by  the  plaintiff  thereunto,  has  not  rendered 
to  him  a  reasonable  account  of  the  said  goods,  but  refuses  so  to  do;  to  the 

damage  of  the  plaintiff  of dollars,  and  therefore  he  brings  his  suit, 

etc. 

A  person  is  chargeable  as  bailiff  where  he  has  the  administra- 
tion or  charge  of  lands,  goods  or  chattels  (or  even  moneys),  to 
make  the  best  benefit  thereof  for  the  owner.'*  Against  such 
bailiff  an  action  of  account  lies  for  the  profits  which  he  has 
raised  or  made,  or  might,  by  his  industry  and  care,  have  rea- 
sonably raised  or  made,  his  reasonable  charges  and  expenses 
being  deducted.* 

Where  the  defendant  is  charged  as  bailiff,  the  declaration 
should  specify  the  particular  goods  of  which  he  had  the  care 
and  management.* 

No.  IJ).!.    Against  a  receiver. 

{As  in  last  precedent,  to  the  asterisk:)  receiver  of  the  moneys  of  the 
plaintiff,  in  the  county  aforesaid:  For  that  whereas  the  defendant  was 
there  receiver  of  the  moneys  of  the  plaintiff,  from  the day  of,  etc.,  un- 
til, etc.,  during  which  time  the  defendant  there  received,  of  the  moneys  of 

*  1  Freem.  Pr.  246.  *  McMurray  v.  Rawson,  3  Hill  (N. 

2  1  Humph.  Pr.  184;  Co.  Litt.  271.      Y.)  59. 
^Sargent  v.  Parsons,  13  Mass.  149. 
17 


258  ACCOUNT. 

the  plaintiff, dollars  by  the  hands  of  one  J.   K., dollars,  by  the 

hands  of  one  L.  M.,  and dollars  by  the  hands  of  one  N.  O.,  amounting 

in  the  whole  to dollars,  to  render  a  reasonable  account  thereof  to  the 

plaintiff,  wlien  he,  the  defendant,  should  be  thereto  requested:  'Yet  the  de- 
fendant, though  he  was  afterwards,  to  wit,  on,  etc.,  there  requested  by  the 
plaintiff  so  to  do  has  not  rendered  to  him  a  reasonable  account  of  the  said 
moneys,  but  so  to  do  has  refused,  and  still  refuses;  to  the  damage  of  the 
plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc. 

A  person  is  chargeable  as  receiver  where  he  receives  money 
for  the  owner; '  but  not  Avhere  he  receives  property  to  sell  for 
the  owner,  and  retains  the  money  arising  from  the  sales;  there 
he  is  chargeable  as  bailiflf.  He  is  also  chargeable  as  receiver 
of  goods,  when  such  receiving  is  not  coupled  with  an  authoritj^ 
to  sell." 

A  receiver  is  answerable  only  for  the  precise  sum  of  money, 
or  goods,  received; "  and  he  can  only  claim  such  charges  and 
expenses  as  are  agreed  upon.*  It  seems  a  defendant  may  be 
charged  both  as  bailiff  and  receiver,  in  the  same  count.*  In 
declaring  against  one  as  receiver,  it  is  necessary  to  set  forth 
by  whose  hands  he  received;  but  where  he  is  charged  as  bailiff 
it  is  not  necessary,'  nor,  it  is  said,  when  the  action  is  between 
merchants.'  Particularity  with  regard  to  the  exact  amount 
of  the  money,  or  the  precise  time  of  receiving  it,  is  not  re- 
quired.* 

No.  IJfZ.    By  one  tenant  in  common  against  his  co-tenant. 

{Title  of  c'onrt,  etc.)  A.  B.  plaintiff,  by  E.  F.,  his  attorney,  complains  of 
C.  D.,  defendant,  of  a  plea  of  account  render:    For  that  whereas  on  the 

day  of,  etc.,  and  from  thence  until  the day  of,   etc.,  {or  "  until 

and  at  the  time  of  the  commencement  of  this  suit,'")  the  plaintiff  was  seized 
in  his  demesne,  as  of  fee,  of  the  one  undivided  half  part  of  certain  parcels 
of  land,  situate,  etc. ;  and  the  defendant,  and  divers  other  persons  whose 
names  are  to  the  plaintiff  unknown,  during  all  that  time  held  the  said 
parcels  of  land  together  with  the  plaintiff,  as  tenants  in  common;  and  the 
defendant  there  had  also,  during  all  that  time,  the  care  and  management 

>Co.  Litt.  173.  186;  Jordan  v.  Wilkins,  2  Wash.  (C. 

2 1  Humph.  Prac.  184.  C.  R.)  482. 

3  01.  Free.  96.  ">  3Ioore  v.  Wilson,   2  Chipm.   91; 

4  Co.  Litt.  172.  see  Bishop  v.  Eagle,   11  Mod.  186. 

5 1  Humph.  Free.  184,  186.  « Burdet  v.  Thnile,  2  Lev.  (K.  B.) 

«Co.  Litt.  172a;  Jaggard  v.  Trip,      126. 
3  Keb.  425;  Bishop  v.  Eagle,  11  Mod. 


ACCOUNT.  259 

of  the  whole  of  the  said  parcels  of  land,  to  receive  and  take  the  profits  and 
benefits  thereof,  and  as  bailiff  of  the  plaintiff  of  what  he,  the  defendant, 
received  more  than  his  due  proportion  of  the  same,  to  render  a  reasonable 
account  thereof  to  the  plaintiff,  and  his  share  thereof,  when  he,  the  defend- 
ant, should  be  thereto  requested,  according  to  the  form  of  the  statute,  etc. : 
And  although  the  defendant,  during  the  time  aforesaid,  there  received 
more  than  his  due  proportion  of  the  profits  and  benefits  of  the  said  parcels 
of  land,  and  the  plaintiff's  share  thereof,  that  is  to  say,  the  whole  of  the 
said  profits  and  benefits,  yet  the  defendant,  though  he  was  afterwards,  to 
wit,  on,  etc.,  there  requested  by  the  plaintiff  so  to  do,  has  not  rendered  to 
him  a  reasonable  account  of  the  said  profits  and  benefits  so  received  as 
aforesaid,  or  any  part  thereof,  or  of  the  said  share  of  the  plaintiff,  or  any 
part  thereof,  but  refuses  so  to  do,  contrary  to  the  form  of  the  statute,  etc. ; 

to  the  damage  of  the  plaintiff  of  dollars,  and  therefore  he  brings  his 

suit,  etc. 

A  second  count  may  be  added,  omitting  any  allegation  that 
the  defendant  was  bailiff,  and  following  the  language  of  the 
first  section  of  the  statute — charging  that  the  defendant  took 
and  used  the  profits  and  benefits  in  greater  proportion  than 
his  interest.  A  third  count  may  also  be  added,  charging  the 
defendant  as  bailiff  of  a  moiety  of  the  land,  without  disclos- 
ing that  he  was  tenant  in  common. 

Ko.  143.    Partner  against  partner,  as  receiver. 

(Commence  as  in  last  precedent.)  For  that  whereas  on,  etc.,  and  from 
thence  until,  etc.,  in  the  county  aforesaid,  the  plaintiff  and  the  defendant 
were  partners  in  trade,  equal  in  interest,  under  tlie  name  and  firm  of,  etc. ; 
and  during  that  time  the  defendant  was  there  receiver  of  the  moneys  of 
the  plaintiff  and  the  defendant,  belonging  to  them  as  partners  as  aforesaid, 
and  received  of  such  moneys,  by  the  hands  of  divers  persons,  divers  sums, 

amounting  to dollars,  for  tlie  common  benefit  of  the  plaintiff  and  the 

defendant,  and  to  render  to  the  plaintiff  a  reasonable  account  respecting 
the  same,  when  he,  the  defendant,  should  be  thereto  requested:  Yet  the 
defendant,  though  he  was  afterwards,  to  wit,  on,  etc.,  there  requested  by 
the  plaintiff  so  to  do.  has  not  rendered  to  him  a  reasonable  account  in  that 
behalf,  but  so  to  do  has  refused,  and  still  refuses;  to  the  damage  of  the 
plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc' 

In  another  count  the  defendant  may  be  charged,  in  like  man- 
ner, with  receiving  divers  goods,  etc.,  describing  them  gener- 
ally; and  other  counts  may  charge  him  as  bailiff  of  money  and 

1  See  May  v.  Williams,  3  Vt.  243;      v.  Wilkins,  2  Wash.  (C.  C.  E.)  482; 
James -v.  Broicn,  1  Dall.  389;  Irvine      01.  Prec.  103. 
V.  Hanlon,  10  S.  &  R.  219;  Jordan 


260  ACCOUNT. 

goods,  to  merchandise,  etc.,  for  the  common  benefit  of  the 
partners;  and  others  as  receiver,  and  as  bailiff,  of  the  plaint- 
iff's share  of  the  money  and  goods;  and  still  others  as  tenant 
in  common  of  the  goods,  with  the  plaintiff. 

The  general  rule  is,  that  where  the  plaintiff  declares  against 
one  as  receiver,  the  declaration  must  specify  the  amounts  re- 
ceived, and  by  whose  hands;  but  it  is  said  that  "  where  the 
ground  of  liability  is  a  privity  or  connection  as  a  partner,  or 
as  principal  and  agent,  or  bailor  and  bailee,  the  nature  of  which 
leads  to  an  habitual  receiving,  and  disposing  of  property,  the 
allegation  of  that  privity,  and  of  the  receiving  of  divers  sums, 
etc.,  in  consequence  of  it,  is  sufficient,  without  stating  the 
sums  or  the  persons  from  whom  received.'- '  From  the  lan- 
guage of  the  decisions  and  precedents,  however,  it  would  seem 
better  to  allege  the  sums  and  persons  where  it  can  be  done. 
Upon  proof  of  a  receipt  by  the  hands  of  any  one  of  the  per- 
sons mentioned  in  the  declaration,  the  plaintiff  is  entitled  to  a 
general  verdict  under  an  issue  upon  the  plea  of  ne  unques 
receiver* 

It  has  been  said  that  in  account  between  mercantile  part- 
ners, the  defendant  should  be  charged  as  receiver."  But  this 
would  appear  to  depend  on  the  circumstances,  since  in  the  pre- 
cedents partners  are  sometimes  charged  as  bailiffs,  and  some- 
times as  receivers;  and  in  some  cases  they  are  charged  as 
receivers  in  one  count  and  as  bailiffs  in  another  count  of  the 
same  declaration.* 

No.  m.    Partner  against  partners,  as  hailiffs  of  lands  and  goods. 

{Commence  as  in  No.  14^,  ante.)  For  that  whereas  on,  etc.,  and  fi-om 
thence,  until,  etc. ,  in  the  county  aforesaid,  the  defendants  were  bailiffs  to 
the  plaintiff  of  certain  parcels  of  land  of  the  plaintiff  and  the  defendants, 
situate,  etc.,  with  the  appurtenances;  and  for  all  that  time  the  defendants 
there  had  the  care  and  management  of  the  said  parcels  of  land,  with  the  ap- 
purtenances, and  received  the  issues  and  profits  thereof,  for  the  common 
benefit  and  profit  of  the  plaintiff  and  the  defendants,  and  to  render  to  the 
plaintiff  a  reasonable  account  of  the  same,  when  they,  the  defendants, 

'1  Freem.  Pr.  244;  May  v.  Will-  ^McMurray\.  Rawson,  3  Hill  (N. 

iams,  3  Vt.  243;  see  Moore  v.  Wil-  Y.)  59. 

son,  2  Chip.  91;  Bishop  v.  Eagle,  11  *  Whelen  v.  Watmough,   15  S.  & 

Mod.  186;  01.  Prec.  104.  R  153;   01.   Prec.    97-104;   Humph. 

Urvine  v.  Hanlin,  10  S.  &  R.  219.  Prec.  189, 


ACCOUNT.  261 

should  be  thereto  requested  :  And  also,  during  all  that  time,  the  defendants 
were  there  bailiffs  to  the  plaintiff,  and  had  the  care  and  management  of 
great  quantities  of  hay,  etc.,  etc.,  of  the  plaintiff,  and  the  defendants,  for 
the  common  benefit  and  profit  of  the  plaintiff  and  the  defendants,  and  to 
render  to  the  plaintiff  a  reasonable  account  thereof,  when  the}^  the  defend- 
ants, should  be  thereto  requested.  Yet  the  defendants,  though  they  were 
afterwards,  to  wit,  on,  etc.,  there  requested  by  the  plaintiff  so  to  do,  have 
not  rendered  to  him  a  reasonable  account  of  the  premises,  or  any  part 
thereof,  but  so  to  do  have  refused,  and  still  refuse;  to  the  damage,  etc.^ 

When  the  action  is  against  two  or  more  partners,  a  joint  lia- 
bility to  account  must  be  shown.''  It  has  been  held  that  the 
action  would  not  lie  where  there  were  more  than  two  partners;  * 
but  this  is  denied,*  and  precedents  of  declarations  by  one  part- 
ner against  several  are  found  in  the  reports  and  the  books  of 
forms." 

No.  145.    Plea — never  bailiff . 

In  the Court. 

Term,  18— 

CD.) 
ats.    >  Account. 

A.  B.  ) 

And  the  defendant,  by  G.  11.,  his  attorney,  comes  and  defends  the  wrong 
and  injury,  when,  etc.,  and  says  that  the  plaintiff  ought  not  to  haA'e 
his  aforesaid  action  against  him,  the  defendant,  because  he  says,  (*)  that  he 
never  was  bailiff  to  the  plaintiff,  or  had  the  care  and  administration  of  the 
goods  in  the  said  declaration  mentioned,  to  merchandise  and  make  profit 
thereof  for  the  plaintiff,  or  thereof  to  render  to  the  plaintiff  a  reasonable 
account,  when  he,  the  defendant,  should  be  thereto  requested,  in  manner 
and  form  as  the  plaintiff  has  in  the  said  declaration  above  alleged:  And  of 
this  the  defendant  puts  himself  upon  the  country,  etc. 

No.  146,    Plea — never  receiver. 

(As  in  the  last  precedent,  to  the  asterisk :)  that  he  never  was  receiver  to 
the  plaintiff,  of  the  moneys  in  the  said  declaration  mentioned,  or  any  jjart 
thereof,  by  the  hands  of  the  said  J.  K.,  L.  M.  and  N.  O.,  or  any  or  either  of 
them,  to  render  to  the  plaintiff  a  reasonable  account  tliereof,  when  he,  the 
defendant,  should  be  thereto  requested,  in  manner  and  form  as  the  plaintiff 

»  01.  Prec.  100,  Murray  v.  Rawson,  3  Hill  (N.  Y.)  59; 

^  Whelen  v.  Watmough,  15  S.  &  Co.  Lit.  172a. 

p.  153.  ■*  Whelen  v.  Watmough,   15  S.  &, 

3  Beach  v,  Hotchkiss,  2  Conn.  429;  R.  153;  see  1  Freem.  Pr,  239-243. 

Appleby  v.  Brown,  24  N.  Y.  143;  see  *  WheL'u  v.  Watmough,   15  S.    & 

Woodv.  Merrow,  25  Vt.   340;  Mc-  R.  153;  01.  Prec.  97-104;   PI.  Assist. 

35;  1  Freem.  Pr.  239. 


2G2  ACCOUNT. 

has  above  in  the  said  declaration  alleged:    And  of  this  the  defendant  puts 
himself  upon  the  country,  etc. 

No.  147.    Plea,  to  declaration  by  tenant  in  common,  that  defendant  did 
not  have  the  care,  etc.,  to  render  account  as  bailiff,  etc. 

{As  in  No.  14s,  ante,  to  the  asterisk :)  that  he  never  had  the  care  and  man- 
agement of  the  parcels  of  land  in  the  said  declaration  mentioned,  or  any 
part  thereof,  to  receive  and  take  the  profits  and  benefits  thereof,  or,  as 
bailiff  of  the  plaintiff  of  what  he,  the  defendant,  received  more  than  his  due 
proportion  of  the  same,  to  render  a  reasonable  account  thereof,  to  the 
plaintiff,  and  his  share  thereof,  when  he,  the  defendant,  should  be  thereto 
requested,  in  manner  and  form  as  the  plaintiff  has  above  in  the  said  decla- 
ration alleged:  And  of  this  the  defendant  puts  himself  upon  the  country, 
etc. 

No.  14s.    Plea,  to  declaration  by  tenant  in  common,  that  defendant  has 

fully  accounted. 

And  for  a  further  plea  in  this  behalf,  the  defendant  says,  etc.,  etc.,  be- 
cause he  saj's,  that  after  the  time  during  which  he  is  in  the  said  declaration 
alleged  to  have  had  the  care  and  management  of  the  said  parcels  of  land  in 
the  said  declaration  mentioned,  to  receive  and  take  the  profits  and  benefits 
thereof,  and,  as  bailiff  of  the  plaintiff,  to  render  such  account  as  therein 
mentioned,  to  wit,  on,  etc.,  he,  the  defendant,  there  fully  accounted  with 
the  plaintiff  concerning  the  said  time  and  the  said  profits  and  benefits  in 
the  said  declaration  mentioned,  and  his  said  share  thereof:  And  this  the 
defendant  is  ready  to  verify;  wherefore  he  prays  judgment,  etc. 

If  pleaded  to  a  declaration  containing  several  counts,  the 
foregoing  pleas  are  of  course  to  be  limited  to  the  particular 
count  or  counts  which  they  are  intended  to  answer.  See  page 
57,  ante.  In  the  action  of  account,  there  is  no  general  issue. 
The  defendant  may  plead  infancy;  and  when  sued  as  bailiff  or 
receiver  in  fact,  he  may  plead  that  he  was  not  bailiff  or  receiver; 
but  when  sued  as  tenant  in  common,  under  the  statute,  if  the 
declaration  is  properly  framed,  a  plea  (in  the  ordinary  form) 
that  he  was  not  bailiff  or  receiver  would  be  insufficient.  In 
such  case  the  defendant  may  deny  the  tenancy  in  common. 
The  defendant  may  also  plead  that  he  has  accounted,  or  a  re- 
lease, arbitrament,  bond  given  in  satisfaction,  and  the  statute 
of  limitations,'  and  various  other  matters.  A  plea  is  sometimes 
interposed,  denying  that  there  was  any  request  to  account;'  and 

1 1  Chit.  PI.  429;  Bac.  Abr.  Acct.  E.      Aiken  v.  Smith,  21  Vt.  172;  see  Chad- 
■^Stedman  v.  Gassett,  18  Vt.  346;      tcickv.  Divol,  12  Vt.  501. 


ACCOUNT.  263 

there  is  a  precedent  of  a  plea  that  the  goods  bailed  were  de- 
stroyed by  fire.* 

In  Illinois,  the  rule  laid  down  is  "  to  require  the  defendant 
to  file  before  the  court,  in  the  first  instance,  every  defense 
which  shows  that  he  is  not  then  liable  to  account  to  the  plaintiff, 
whether  it  be  that  he  never  was  so  liable,  or  that  some  act  has 
been  done  which  has  discharged  him  from  that  liability,  ad- 
mitting that  it  once  existed;"  *  and,  by  statute,  no  formal 
pleadings  are  now  allowed  before  the  auditors/ 

The  relation  of  guardian,  executor,  administrator,  tenant  in 
common,  etc.,  may  be  denied  in  like  manner  as  that  of  bailiff 
or  receiver.  The  pleader  is  referred  to  chapter  3,  ante^ 
Defenses  to  an  Action^  for  replications,  pleas  in  abatement,  de- 
murrers, etc. 

For  an  able  and  elaborate  discussion  and  defense  of  the 
action  of  account,  see  Freeman's  Illinois  Forms,  Pleading  and 
Practice,  sections  456  to  643. 

>1  Wentw.  PI.  88.  8Rev.  Stat.  (1893),  106;  Rev.  Stat. 

s£ee  V.  Abrams,  12  111.  110.  (1895),  106;  1  Starr  &  Curtis  190. 


CHAPTER  VII. 


COVENANT. 


The  action  of  covenant  lies  for  the  recovery  of  damages  for 
the  breach  of  a  covenant  or  contract  under  seal; '  and  can  not 
be  maintained  except  against  a  person  who,  by  himself,  or 
some  other  person  acting  on  his  behalf,  has  executed  a  deed 
under  seal,  or  who,  under  some  very  peculiar  circumstances, 
has  agreed  by  deed  to  do  a  certain  thing.^  The  action  may  be 
maintained  on  the  covenant  under  seal,  whether  the  covenant 
is  express,  or  implied  hy  laio  from  the  terms  of  the  deed;  *  and 
implied  covenants  may  be  set  forth  in  the  declaration  in  the 
same  manner  as  if  they  were  expressed  in  the  instrument.* 

It  lies  upon  an  indenture  of  apprenticeship  against  the  mas- 
ter, for  not  instructing  his  apprentice,  or  against  the  party 
who  covenants  for  the  due  service  of  such  apprentice,  but  it 
will  not  lie  against  an  infant  apprentice."  It  lies  on  articles 
of  agreement  under  seal;  or  deeds  for  separate  maintenance; 
and  on  covenants  in  deeds  of  conveyance,  etc.,  for  good  title, 
etc.;  on  charter-parties  of  affreightment;  on  policies  of  insur- 
ance, under  seal,  against  fire,  etc.;  and  on  annuity  and  mort- 
gage deeds.* 

It  will  not  lie  against  the  grantee  in  a  deed,  for  a  failure  by 


*  Gale  V.  Nixon,  6  Cowen,  445 
Ludlum  V.  Wood,  2  N.  J.  L.  55 
Trible  v.  Oldham,  5  J.  J.  Marsh.  137 


188;  Kent  v.  Welch,  7  Johns.  258; 
Dorsey  v.  Jackman,  1  Serg.  &  Rawle 
43. 

Vicary  v.  3Ioore,  3  Watts  451;  Davis  *  Grannis  v.   Clark,  8  Cowen  36; 

V.  Jwdd,  6  Wis.  85;  McVoyv.  Wheeler,       Tompkins  v.  Elliott,  5  Wend.  502. 
6  Port.  (Ala.)  201;  1  Chit.  PL  105.  *1  Chit.  PI.  105;    Commonifealth 

^ Somerville  Y.Stephenson,  3  Stew-      x.Wiltbaiik,  10  Serg.  &  Rawle  416. 
art  271;  Reesv.  Overbaugh,  6  Cowen  *  1  Chit.  PI.  106;  Nichols  v.  Carr, 

746;  Poioers  v.  Ware,  2  Pick.  451;  1      35  Penn.  381;  Herron  v.  Ins.  Co.,  28 
Chit.  PI.  115.  111.  235. 

"Frost  V.  Raymond,  Cai.  (N.  Y.) 

(2G4) 


COVENANT.  .  265 

the  grantee,  after  the  accepting  of  the  deed  and  taking  posses- 
sion under  it,  to  perform  the  conditions  upon  which  the  deed, 
as  therein  expressed,  was  executed.'  It  is  the  peculiar  rem- 
edy upon  contracts  under  seal,  where  the  damages  are  unliqui- 
dated and  depend  in  amount  on  the  opinion  of  the  jury,  in 
which  case  neither  debt  nor  assumpsit  can  be  supported.^ 

Covenant,  not  debt,  lies  on  a  writing  obligatory  for  the  pay- 
ment of  a  certain  sum  in  land  office  money ,^  or  in  United 
States  bank  notes,^  or  in  "  banking  money,"  ^  or  in  "  lumber,"  ' 

So  covenant,  not  debt,  lies  for  installments  of  a  sealed  note, 
due  and  sued  for  before  the  coming  due  of  the  last  installment.' 
Covenant  will  not  lie  on  the  condition  in  a  title  bond  to  con- 
vey land.*  It  will  not  lie  on  a  contract  under  seal,  which  has 
been  materially  varied  by  a  subsequent  parol  agreement.  The 
remedy  is  on  the  subsequent  agreement.* 

Covenant  will  lie  upon  a  lire  insurance  policy  which  has  been 
renewed,  and  which  provided  that  the  same  might  be  con- 
tinued in  force,  the  premium  being  paid,  and  a  renewal  receipt 
given."  The  remedy  by  covenant  for  a  breach  of  contract  for 
the  sale  of  lands,  is  bungling  and  inadequate;  the  equity 
remedy  is  better  and  ought  to  be  encouraged."  A  plaintiff  may 
sustain  covenant  on  a  sealed  instrument,  although  it  may  be  so 
defectively  executed  on  his  part  that  only  assumpsit  can  be 
maintained  against  him.'^ 

Where  a  grantee  of  land  who  holds  under  a  deed  containing 
covenants  of  seizin,  warranty,  etc.,  is  obliged  to  yield  up  the 
premises  in  favor  of  a  prior  mortgagee,  he  can  not  resort  to  a 
court  of  chancery  for  relief  against  his  grantor,  because  he  has 

'  R.  R.  Co.  V.  Beckmeir,  72  111.  267;  '  Stevens  v.  Chamherlin,  1  Vt.  25; 

Burnett  v.  Lynch,  5  Barn.  &  Cress.  North  v.  Eslava,  12  Ala.  24. 

589.  li  Huddle  v.  Worthington,  1  Ohio, 

2  1  Chit.  PI.  108;  Hedges  v.  Gray,  423;  Abrams  v.  Kounta,  4  Ohio  214. 
1  Blackf.  216;  Wilson  v.  Hickson,  1  »  McVoy  v.  Wheeler,  6  Port.  (Ala.) 
Blackf.  231,  201;   Raymond  v.  Fisher,  6  Mo.  29; 

3  Hedges  v.  Gray,  1  Blackf.  216.  Foundry  v.  Hovey,  21  Pick.  417. 

"  Osborn  v.  Fulton,  1  Blackf.  233;  i"  Herron  v.  Ins  Co.,  28  111.  235. 

Wilson  V.  Hickson,  1  Blackf.  230.  "  1  Grant  (Penn.)  83. 

*  Harper  v.  Levy,  1  Blackf.  294.  "^  Directors  v.  McFadden,  1  Grant 

^  Cassady    x,  Laughliii,  3  Blackf.  (Penn.)  230. 
134. 


266  COVENANT. 

acom])lete  remedy  at  law,  by  action  of  covenant.*  The  action 
will  lie  for  the  breach  of  a  covenant  by  defendant  that  he  will 
abstain  from  the  exercise  of  his  calling  for  a  limited  time  in  a 
particular  place.^ 

Covenants  in  deeds  relating  to  lands — What  will  consti- 
tute a  breach,  etc. — To  constitute  a  breach  of  covenants  for 
quiet  enjoyment,  there  must  be  a  union  of  acts  of  disturbance 
and  lawful  title."  At  least,  the  covenantee  must  affirmatively 
prove  that  his  adversary  has  a  paramount  title  against  which 
it  would  be  unavailing  to  struggle." 

A  covenant  of  warranty  is  prospective  and  runs  with  the 
land  into  the  hands  of  all  those  to  whom  it  may  come  by  pur- 
chase or  descent;  *  and  the  grantees  in  a  deed  of  conveyance 
can  not  claim  the  benefits  of  any  covenants  in  the  deeds  to 
those  from  whom  he  takes,  except  those  for  quiet  enjovment 
and  warranty.* 

The  covenant  of  warranty  is  broken  only  by  an  eviction 
or  something  equivalent  thereto;'  and  on  an  action  for  the 
breach  thereof,  the  plaintiff  must  show  an  eviction  or  ouster 
by  some  title  paramount  to  the  grantors.* 

In  a  case  where  the  grantor  had  covenanted  that  the  grantee 
should  peaceably  and  quietly  hold  the  premises  without  any 
let,  suit,  etc.,  of  the  grantor,  or  any  person  lawfully  claiming 
under  him,  and  that  they  were  free  from  all  former  incum- 
brances, of  what  nature  or  kind  soever,  made  by  the  grantor, 
it  was  held  that  a  judgment  against  the  grantor,  outstanding 
at  the  time  of  executing  the  deed,  was  a  breach  of  the  cove- 
nant.^ 

A  covenant  of  seizin  is  broken,  if  at  all,  the  moment  it  is 

>  Ohliy^g  v.  Luitjens,  32  111.  23.  Williams,  66  111.  395;  Fitch  v.  John- 

"^  Boyer  v.   Watson,  52  111.  App.  so?i,  104  111.  111. 

361.  ^Barry  v.  Guild,  126  111.  439. 

^Beehe   v.    Su-eet,    3    Giim.    162;  '' Brady  v.  Sjmrh,  21  111.  418;  Ou^n 

Barry  v.  Guild,  126  111.  439.  v.  Thomas,  33  111.  320;  Jones  v.  War- 

*Furnessv.  Williams,   11  111.  229.  ner,  81  111.  343;  Scott  \.  Kirkendall, 

s  Brown  v.  Metz,  33  111.  339;  Clay-  88  111.  465. 

combv.  3Iimger,  51  111.  373;  Wead  » Owen  v.    Thomas,   33    111.    820; 

V.  Larkins,  54  111.  489;  Dorsey  v.  R.  Jones  v.  Warner,  81  111.  343. 

B.  Co.,  58  111.  65;  Sterling  Co.  v.  ^  Hall  v.    Dean,  13    Johns.  105; 

Watson  V.  Gardner,  119  111.  312. 


COVENANT.  267 

made;'  and  when  a  grantee  in  a  deed  containing  a  covenant 
of  general  warranty  has  taken  possession,  he  can  not  maintain 
an  action  for  a  breach  of  such  covenant  until  evicted  by  legal 
proceedings,  or  until  he  yields  to  a  paramount  title.^ 

The  entry  of  a  mortgagee,  for  foreclosure,  in  pursuance  of 
Eev.  Stat.,  C.  107,  of  Mass.,  is  held  to  be  such  an  eviction;  ^  so 
if  the  grantee  yields  without  suit,  to  one  having  a  paramount 
title,  demanding  possession,*  or  if  he  buys  in  such  paramount 
title  in  order  to  avoid  eviction;  *  but  the  burden  of  tlie  proof 
is  on  to  him,  to  show  that  the  title  to  which  he  yields  is 
good.® 

The  existence  of  an  inchoate  right  of  dower  has  been  held 
to  constitute  a  breach  of  the  covenant  against  incumbrances.'' 
A  right  of  way  over  land  is  an  incumbrance.^  And  where  a 
devisee,  holding  an  inalienable  life  estate  in  land,  executed  a 
conveyance  of  the  premises,  in  fee,  covenanting  against  all  in- 
cumbrances, it  was  held  that  the  existence  of  this  life  estate, 
inalienable  in  its  character,  in  the  grantor,  was  a  subsisting  in- 
cumbrance, and  constituted  a  breach  of  the  covenant  against 
incumbrances  immediately  upon  the  execution  of  the  deed.^ 

Where  there  is  an  outstanding  incumbrance  on  the  land,  the 
purchaser  need  not  wait  until  he  is  evicted,  but  may  satisfy  the 
incumbrance,  and  then  resort  to  his  action  on  the  covenant 
against  incumbrances.'"  And  if  the  covenantee  dies  before  the 
limitation  of  the  ejectment  suit,  and  in  reviving  the  same 
against  his  heirs,  one  is  omitted,  and  the  suit  progresses  to  a 

'  Wadhams  v.   Sivan,  109  111.  46;  ^  Chapel  v.  Bull,  17  Mass.  213. 

Holbrook  v.  Debo,  99  111.  372;  Brady  ^Hamilton  v.  Cutis,  4  Mass.    349. 

V.  Spurk,  27  111.  478;  King  v.    Gib-  "<  Shearer  \.  Ranger,  '22  Pick.  447; 

son,  32  111.  348;    Baker  v.  Hunt,  40  but  see  Ayres  v.  McConnell,   15  111. 

111.  264.  230;  Biglow  v.  Hubbard,   97  Mass. 

^Ou-env.  Thomas,  SSm.  320;  Bost-  195;  McAlpinv.  Woodruff,  11  Ohio 

wick  V.  Williams,  36  111.  65;  Jones  St.  120. 

V.    Warner,   81    111.    343;    Scott   v.  ^ Harlow  y.  Thomas,  15  Pick.  56; 

Kirkendall,   88  111.  465;    Bugger  v.  Beach  v.  Miller,  51  111.  206. 

Oglesby,  99  111.  405.  9  Christy  v.  Ogle,  33  111.  295. 

3  miitev.  Whitney,  3  Mete.  (Mass.)  "  Willetts  v.  Burgess,   34  111.  494 

81;  Estabrook  v.  Smith,  G  Gray  512.  Claycomb   v.    Hunger,    51  111.    373 

*  Hamilton -v.  Cutis,  4  Mass.  349;  Harding  v.    Larkin,    41     111.    413 

Owen  V.  Thomas,  33  111.  320.  McConnell  v.  Downs,  48  111.  271. 


263  COVENANT. 

recovery  against  all  the  heirs  but  one,  it  would  still  be  an 
eviction/ 

AVhere  an  agreement  under  seal  contains  several  covenants, 
to  be  performed  by  one  party,  and  in  consideration  of  such  cov- 
enants the  other  party  agrees  to  perform  an  act,  the  first  are 
precedent  covenants,  and  a  performance  thereof  must  be 
averred  and  proved,  to  warrant  a  recovery  on  the  latter  and 
dependent  covenant.* 

A  covenant  of  seizin  only  extends  to  a  title  existing  in  a 
third  person,  which  ma}'"  defeat  the  estate  granted  by  cov- 
enantors. It  does  not  embrace  a  title  that  may  be  already  in 
the  grantee.'  The  making  of  a  deed  with  a  covenant  of  gen- 
eral warranty  is  a  performance  of  a  covenant  to  make  a  suf- 
ficient conveyance  of  land.* 

Where  the  title  fails  to  a  part  of  the  land,  sold  for  a  gross 
sum,  the  measure  of  damages  for  a  breach  of  the  covenant 
of  warranty  is  a  sum  in  such  proportion  to  the  whole  con- 
sideration paid,  as  the  value  of  that  part  of  the  land  to  which 
the  title  has  failed  bears  to  the  value  of  the  whole  land,  and 
interest  on  such  sum.'  A  covenant  to  make  a  general  warranty 
deed  is  performed  by  making  a  deed  containing  the  words, 
"  will  warrant  and  forever  defend  the  title,"  etc.;  and  such  a 
covenant  is,  in  effect,  a  covenant  for  quiet  enjoyment." 

The  covenants  created  by  the  use  of  the  words  "  grant,  bar- 
gain and  sell,"  under  the  11th  section  of  chapter  24  of  the 
Revised  Statutes  of  Illinois,  are  not  operative  Avhen  the  grantor 
has  inserted  other  covenants  in  the  deed.  This  enactment  is 
in  derogation  of  the  common  law,  and  should  be  construed 
strictly,' 

,A  party  who  contracts  to  give  a  deed,  with  a  covenant 
against  incumbrances,  does  not  meet  his  obligation  by  offer- 
ing  such  a  deed,   if  the   property   is  actually   incumbered.* 

•  Harding  v.  Larkin,  41  111,  414.  « Athens  v.  Nale,  25  111.  195. 
'^Hoy  V.  Hoy,  44  111.  469.  '  Finley  v.  Steele,  23 111.56;  Wuma 
^Furness  v.  Williams,  11  111.  229.        v.  McGaughan,!  S.  M.  427. 

*  Clark  V.  Lyons,  25  111.  105.  ^  Comcay  v.  Case,  22  111.  127;  Sil- 
^  Major  w.  Dunnavant,  25  III.  262;  vermanv.  Loomis,  104111.  137;  Pat- 
see  Willetts  V.   Burgess,  34  111.  494;  terson  v.  Sweet,  3  Bradw.  550. 
Wadhams  v.  Swan,  109  111.  48. 


COVENANT.  269 

"Where  a  covenant  is  to  be  implied  from  statutory  words,  the 
very  words  of  the  statute  must  be  used.' 

By  statute  in  Illinois,  the  words  "  grant,  bargain  and  sell," 
in  a  deed,  amount  to  an  express  covenant  that  the  grantor  was 
seized  of  an  indefeasible  estate,  in  fee  simple,  free  from  incum- 
brances, done  or  suffered  from  the  grantor,  as  also  for  quiet 
enjoyment  against  the  grantor,  etc." 

A.  conveyed  land  to  B,,  his  unmarried  daughter,  and  to  the 
heirs  of  her  body  forever.  Before  issue  born  of  her  body,  B. 
made  a  deed  purporting  to  reconvey  the  land  to  A.;  after- 
wards A.  conveyed  the  land  to  C,  with  covenants  that  he  was 
seized  of  a  good,  sure,  perfect,  absolute  and  indefeasible  estate 
of  inheritance  in  the  law  in  fee  simple.  Held,  that  the  cove- 
nants were  broken  as  soon  as  it  was  made,  and  that  C.  could 
sue  and  recover  for  the  breach,  notwithstanding  he  was  put 
into  possession.' 

In  order  to  maintain  an  action  upon  a  covenant  of  warranty, 
the  party  suing,  if  he  has  neglected  to  give  notice  to  the  war- 
rantor of  the  pendency  of  the  action  of  ejectment,  b}'-  which  he 
has  been  evicted,  must  come  prepared  to  prove  that  the  eviction 
was  by  force  of  an  adverse  or  superior  title;  in  other  words, 
he  must  show  that  if  the  warrantor  had  appeared,  and  de- 
fended the  action  of  ejectment,  he  could  not  have  prevented  a 
recovery.'  When  a  contract  under  seal  has  afterwards  been 
varied  in  its  terms  by  a  subsequent  parol  contract  made  on  a 
new  consideration,  such  substituted  agreement  must  be  the 
subject  of  an  action  of  assumpsit  and  not  of  covenant.^ 

'  Vipond  V.  HurTburt,  22  111.  226.  Huestis,  68  111.  594;  Blair  v.  Va7i- 

2  Rev.  Stat.  (1893),  353;  Rev.  Stat.  blarcum,  71  111.  290. 

(1895),  3T4;  1  Starr  &Ciirtis  572;  see  * Sisk    v.    Woodruff,    15    111.    15; 

Hatok  V.   McCullough,   21   111.   220;  Harding  v.  Larkin,  41  111.  413;  Mc- 

Finley  v.  Steele,  23  111.  56.  Connelly.  Doicns,  48  111.  271;  Claj- 

^Frazer  v.  Supervisors,  74  III.  282;  comb  v.  Munger,  51  111.  373. 

Voris  V.  Sloan,  68  111.  588;  Butler  v.  ^  Weinman  v.  Hughson,^l\l.  App. 

22. 


270  COVENANT. 

DECLARATIONS    IN    COVENANT. 

No.  149.     Grantee  against  grantor,  on  covenants  in  a  deed  of  conveyance  of 

land. 

In  the Court. 

Term,  18—. 

State  of  Illinois,  ) 

Count}^  of .     )  set.     A.  B.,  plaintiff,  by  E.  F.,  his  attorney,  complains 

of  C.  D.,  defendant,  of  a  plea  of  breach  of  covenant :  For  that  whereas  the 
defendant,  on  the day  of ,  in  the  year  18 — ,  in  the  county  afore- 
said, by  his  deed  bearing  date  of  that  day,  and  now  to  the  court  here  shown, 
for  the  consideration  therein  mentioned  did  convey  and  warrant  to  the 
plaintiff,  his  heirs  or  assigns,  in  fee  simple,  certain  real  estate  in  the  county 
aforesaid,  to  wit  {here  describe  the  property):  And  the  defendant  did  by  the 
said  deed,  for  himself  and  his  heirs  and  personal  representatives,  covenant 
with  the  plaintiff,  his  heirs  and  assigns,  amongst  other  things,  that  at  the  time 
of  the  making  and  delivery  of  the  said  deed  he.  the  defendant,  was  lawfully 
seized  of  an  indefeasible  estate,  in  fee  simple,  in  and  to  the  said  real  property, 
and  then  had  good  right  and  full  power  to  convey  the  same;  and  that  he 
warranted  to  the  plaintiff,  his  heii's  and  assigns,  the  quiet  and  peaceable 
possession  of  the  said  real  estate,  and  would  defend  the  title  thereto  against 
all  persons  who  might  lawfully  claim  the  same.  Nevertheless,  the  plaintiff 
avers,  the  defendant  was  not,  at  the  time  of  the  making  and  delivery  of  the 
said  deed,  lawfully  seized  of  an  indefeasible  estate,  in  fee  simple,  in  and  to 
the  said  real  property,  nor  had  he  then  good  right  and  full  power  to  convey 
the  sam?.  And  the  plaintiff  f  urtheravers,  that  he  could  not,  by  force  of  tli« 
said  deed,  quietly  and  peaceably  possess  the  said  real  estate,  nor  did  nor 
would  the  defendant,  though  often  requested,  defend  the  title  thereto  against 
all  persons  who  might  lawfully  claim  the  same;  but  on  the  contrary  thereof, 
one  G.  H.,  who  had  at  the  time  of  the  making  and  delivery  of  the  said 
deed,  and  still  has,  lawful  right  and  title  to  the  said  real  estate,  afterwards, 
to  wit,  on,  etc.,  evicted  the  plaintiff  from  the  said  real  estate,  by  due  process 
of  law,  and  entered  into  the  same,  and  kept,  and  still  keeps,  the  plamtiff  out 
of  the  possession  thereof.  {Any  special  damages  may  here  be  alleged,  in  this 
m.anner:  "  by  reason  of  which  premises  the  plaintiff  has  not  only  been  de- 
prived of  the  said  real  estate,  and  lost  a  large  amount  of  money,  to  wit, 

dollars,  by  him  expended  in  repairing  and  improving  the  same,  but  has 

also  been  compelled  to  pay,  and  has  paid,  the  costs  sustained  by  the  said  G. 
H.  in  prosecuting  a  certain  action  of  ejectment  for  the  recovery  of  the  said 
real  estate,  and  has  also  been  compelled  to  pay,  and  has  paid,  a  large  amount, 
to  wit, dollars,  in  endeavoring  to  defend  the  said  action  of  eject- 
ment.") And  so  the  plaintiff  says,  that  the  defendant  has  not  kept  his 
covenants  aforesaid,  but  has  broken  the  same;  to  the  damage  of  the  plaintiff 
of dollars,  and  therefore  he  brings  his  suit,  etc. 

(This  form  is  framed  upon  the  statutory  warranty  deed  in 
Illinois.)  If  the  breach  of  the  covenants  in  the  deed  consists 
in  the  fact  that  the  defendant  was  not  seized,  and  had  no  right 


COVENANT.  271 

to  convey,  it  is  sufficient  to  simph^  negative  the  covenants.' 
But  with  regard  to  the  covenants  for  quiet  enjoyment,  and 
against  incumbrances,  and  to  warrant  and  defend,  it  is  neces- 
sary to  assign  the  breach,  by  showing  the  interruption  or  in- 
cumbrance complained  of,  or  by  showing  an  ouster  by  an 
elder  title.^ 

It  is  said  that  the  costs  and  counsel  fees  in  the  action  of 
ejectment  are  covered  by  the  general  claim  of  damages,  and 
that  it  is  not  necessary  to  set  them  out.'  Where,  in  describing 
an  instrument,  the  words  of  art  are  used,  such  as  indenture, 
deed,  or  writing  obligatory,  wdiich  of  themselves  import  that 
the  instrument  w^as  sealed  by  the  party,  the  declaration  will  be 
good  without  averment  of  sealing.* 

No.  150.     Grantee  against  grantor — On  the  covenant  against  incumbrances 
in  a  deed  of  conveyance. 

{Commence  as  in  the  last  precedent.)  For  that  whereas  the  defendant,  on, 
etc.,  in,  etc.,  by  his  deed  bearing  date  of  that  day,  and  now  to  the  court 
here  shown,  for  the  consideration  therein  mentioned  did  grant,  bargain  and 
sell  to  the  plaintiff,  his  heirs  and  assigns,  a  certain  parcel  of  land  in  the  said 
deed  particularly  described,  situate,  etc. ,  to  have  and  to  hold  the  same  to 
the  plaintiff,  his  heirs  and  assigns,  forever;  and  the  defendant  did  by  the 
said  deed  covenant  with  the  plaintiff,  his  heirs  and  assigns,  amongst  otlier 
things,  that  at  the  time  of  the  ensealing  and  delivery  of  the  said  deed  the 
said  parcel  of  land  was  free  and  clear  from  all  former  or  other  grants,  bar- 
gains, sales,  liens,  taxes,  assessments  and  incumbrances  of  what  kind  or 
nature  soever.  Yet,  the  plaintiff  avers,  the  said  parcel  of  land  was  not,  at 
the  time  of  the  ensealing  and  delivery  of  the  said  deed,  free  and  clear  from 
all  former  or  other  grants,  bargains,  sales,  liens,  taxes,  assessments  and  in- 
cumbrances of  what  kind  or  nature  soever;  but  on  the  contrary  thereof,  the 
defendant  before  that  time,  to  wit,  on,  etc.,  by  his  deed  of  that  date  had 
mortgaged  the  said  parcel  of  land  to  one  G.  H.,  to  secure  the  payment  of 

dollars,  with  interest  thereon,  etc.,  to  the  said  G.  H.,  by  the day 

of,  etc.;  (*)  which  said  sum  of  money,  with  interest  as  aforesaid,  is  still 
unpaid,  and  the  said  parcel  of  land  is  still  chargeable  with  tlie  payment 
thereof.  And  so  the  plaintiff  says,  that  the  defendant  has  not  kept  his  cov- 
enant aforesaid,  but  has  broken  the  same,  to  the  damage  of  the  j)lauitiff  of 
dollars,  and  therefore  he  brings  his  suit,  etc. 

If  the  plaintiff  has  paid  off  the  mortgage  debt,  then,  in  lieu 

» 2  Chit.  PI.  546.  *  Weinman  v.  Hugh  son,     44    111. 

•■'2Chit.  Pi.  546.  App.  22;  Cabell \. Vaughau, I  Saund. 

^Bickert  v.  Snyder,  9  Wend.  416.        291,  note. 


272  COVENANT. 

of  the  averment  following  the  asterisk  in  the  above  form, 
say: 

"Wliich  said  sum  of  money,  with  such  interest  thereon,  being  still 
unpaid,  and  the  said  deed  of  mortgage  being  still  an  incumbrance  on  the 
said  pai'cel  of  land,  the  plaintiff,  on,  etc.,  to  relieve  the  said  parcel  of  land 
from  the  said  incumbrance,  there  paid  to  the  said  G.  H.  the  said  sum  of 
money,  with  interest  thereon  as  aforesaid,  whereof  the  defendant  then 
and  there  had  notice;  and,  though  requested,  the  defendant  has  not  paid 
to  the  plaintiff  the  said  sum  of  money  and  interest,  or  any  part  of  the 
same." 

It  is  sufficient,  in  the  declaration,  to  say  "certain  land  in 
the  said  deed  particularly  described,"  as  in  the  above  form 
without  any  more  precise  description.' 

No.  151.    Second  or  remote  grantee  against  grantor,  on  covenant  of  war- 
ranty in  a  deed  of  conveyance. 

{Commence  as  in  No.  1^9.)  For  that  whereas  the  defendant,  on,  etc. ,  in,  etc. , 
by  his  deed  bearing  date  of  that  day,  and  now  to  the  court  here  shown,  for 
the  consideration  therein  mentioned  did  grant,  bargain,  sell  and  convey  to 
one  G.  H.,  his  heirs  and  assigns,  a  certain  parcel  of  land,  with  the  appurte- 
nances, situate,  etc.,  to  wit,  (here  describe  the  property;)  to  have  and  to 
hold  the  same  to  the  said  G.  H.,  his  heirs  and  assigns,  forever:  And  the 
defendant  did  by  the  said  deed  covenant  with  the  said  G.  H. ,  his  heirs  and 
assigns,  amongst  other  things,  that  he,  the  defendant,  would  warrant  and 
forever  defend  the  said  premises  to  the  said  G.  H.,  his  heirs  and  assigns, 
against  all  lawful  claims  whatsoever.  And  the  plaintiff  avers,  that  after- 
wards, to  wit,  on,  etc. ,  the  said  G.  H. ,  by  his  deed  bearing  date  of  that  day, 
and  now  to  the  court  here  shown,  for  the  consideration  therein  mentioned 
did  grant,  bargain,  sell  and  convey  the  premises  aforesaid  to  the  plaintiff, 
to  have  and  to  hold  the  same  to  him,  his  heirs  and  assigns,  forever.  Yet, 
the  plaintiff  avers,  the  defendant  did  not  nor  would  (though  often  requested) 
warrant  and  defend  the  said  premises  to  the  plaintiff,  so  being  such  assign 
of  the  said  G.  H.  as  aforesaid,  against  all  lawful  claims  whatsoever;  but  on 
the  contrary  thereof,  at  and  after  the  time  of  the  ensealing  and  delivery  of 
the  defendant's  said  deed,  one  J.  K.  had  lawful  claim  and  paramount  title 
to  the  said  premises,  and  by  virtue  of  his  said  lawful  claim  and  paramount 
title  the  plaintiff  afterwards,  to  wit,  on,  etc.,  was  evicted  from  the  said 
premises,  by  due  process  of  law,  and  is  still  kept  out  of  the  possession  of 
the  same.  And  so  the  plaintiff  says,  that  the  defendant  has  not  kept  his 
covenant  aforesaid,  but  has  broken  the  same;  to  the  damage  of  the  plaintiff 

of dollars,  and  therefore  he  brings  his  suit,  etc.     {See  No.  I49,  ante, 

for  averment  of  special  damage.) 

•  2  Chit.  PI.  550,  e. 


COVENANT.  273 

The  covenant  of  warranty  is  prospective,  and  runs  with  the 
land  to  all  those  to  whom  it  may  come  bv  purchase  or  descent. 
But  the  covenants  of  seizin  and  power  to  sell  are  in  ijrcE- 
senti,  and  if  the  grantor  has  no  title  at  the  time  of  making 
them,  they  are  broken  as  soon  as  made;  and  they  then  become 
a  mere  chose  in  action,  not  assignable  so  as  to  enable  the  as- 
signee to  sue  thereon  at  law,  in  his  own  name.' 

No.  152.     On  a  covenant,  in  a  lease,  to  pay  rent. 

{Commence  as  in  No.  14-9,  ante.)  For  that  whereas  on,  etc.,  in,  etc.,  by 
a  certain  indenture  then  and  there  made  between  the  plaintiff,  of  the  one 
part,  and  the  defendant,  of  the  other  part,  and  bearing  date  of  that  day, 
{tlie  counterpart  of  which  said  indenture  tlie  plaintiff  now  brings  here  into 
court,)  the  plaintiff  did  demise  and  to  farm  let  unto  the  defendant,  his  ex- 
ecutors, administrators  and  assigns,  a  certain  parcel  of  land  in  the  county 
aforesaid,  to  wit,  {here  describe  tJie  property;)  to  have  and  to  hold  tlie  same 
to  the  defendant,  his  executors,  administrators  and  assigns,  from,  etc.,  to, 
etc. ;  yielding  and  paying  therefor  yearly  and  every  year,  to  the  plamttff, 

his  heirs  or  assigns,  the  clear  yearly  rent  or  sum  of dollars,  payable 

quarterly,  to  wit,  on,  etc.,  in  each  and  every  year:  And  the  defendant  did 
thereby,  for  himself,  his  executors,  administrators  and  assigns,  covenant 
with  the  plaintiff,  his  heirs  and  assigns,  amongst  other  things,  that  he,  the 
defendant,  would  well  and  truly  pay,  or  cause  to  be  paid,  to  the  plaintiff, 
his  heirs  or  assigns,  the  said  yearly  rent  or  sum  of dollars,  at  the  sev- 
eral days  and  times  aforesaid.  Yet,  the  plaintiff  avers,  after  the  making 
of  the  said  indenture,  and  during  the  said  term  thereby  granted,  to  wit, 

on,  etc.,  a  large  sum  of  money,  to  wit, dollars,  of  the  rent  aforesaid, 

for years  and  a  half  of  the  said  term,  became  and  was,  and  still  is,  in 

arrear  and  unpaid  to  the  plaintiff,  contrary  to  the  tenor  and  effect  of  the 
said  indenture,  etc.  And  so  the  plaintiff  says,  that  the  defendant  has  not 
kept  his  covenant  aforesaid,  but  has  broken  the  same;  to  the  damage  of 
the  plaintiff  of  dollars,  and  therefore  he  brings  his  suit,  etc. 

If  both  parts  of  the  deed  are  originals,  that  is,  signed  by  all 
the  contracting  parties,  instead  of  "  counterpart,"  in  the  pro- 
fert,  say  ''''  one  part  of  which  said  indenture,"  etc.  In  Illinois, 
by  statute,  prqfert  is  unnecessar}'-." 

In  an  action  upon  the  covenants  in  a  lease,  the  covenantees 
are  the  proper  plaintiffs,  and  the    covenantors   the    proper 

1  Brady  v.  Spurck,  27  111.  478;  see  104  111.  Ill;    Webster  v.  Nichols,  104 

Broicn  v.  Metz,  33  111.    339;  Clay-  111.  160. 

comb  V.  Munger,  51  111.  373;  Wead  '  Rev.  Stat.  (1893),  1073;  Rev.  Stat. 

V.  Larkin,   54  111.   489;    Leopold  v.  (1895),  1157;  2  Starr  &  Curtis  1786. 
Salkey,  89  111.412;  Fitch  v.  Johnson, 
18 


274:  COVENANT. 

defendants,  and  in  case  of  the  death  of  some  of  the  parties 
thereto,  the  actions  must  be  brought  and  judgment  recovered 
by  or  against  the  survivors.' 

The  words  "  demise  "  and  "  demised  "  in  a  lease,  import  a  cov- 
enant on  the  part  of  the  lessor  of  good  right  and  title  to  make 
the  lease,  and  also  imply  a  covenant  for  quiet  enjoyment.  A 
covenant  can  not  be  sued  upon  by  the  person  for  whose  bene- 
fit it  is  made,  if  he  is  not  a  party  to  the  deed,  but  the  suit  must 
be  brought  in  the  name  of  the  party  with  whom  the  covenant 
is  made.  And  this  rule  is  not  abrogated  by  section  19  of  the 
Practice  Act  relating  to  "  sealed  instruments."  ^ 

No.  153.    Apprentice  against  master,  for  breach  of  covenants  in  indenture. 

{Commence  as  in  No.  149,  ante.)  For  that  whereas  on,  etc.,  in.  etc.,  by  a 
certain  indentm-e  then  and  there  made  between  the  plaintiff,  (by  and  with 
the  consent  of  G.  H.,  his  father,)  of  the  one  part,  and  the  defendant,  of  the 
otlier  part,  and  bearing  date  of  that  day,  (one  part  of  which  said  indenture, 
sealed  with  the  seals  of  the  plaintiff,  the  said  G.  H.,  and  the  defendant,  is 
now  to  the  court  here  shown,  the  plaintiff  did  place  and  bind  himself  ap- 
prentice to  the  defendant,  to  learn  his  art  and  calling  of  a  blacksmith  with 
him,  and  to  remain  with  and  serve  him  fi-om  the  said  day  of  the  date  of 
the  said  indenture  until  the  defendant  should  attain  the  age  of  twenty -one 

years,  to  wit,   until  the day  of,  etc. :      And  the  defendant,  for  the 

consideration  therein  mentioned,  thereby  covenanted  with  the  plaintiff  to 
instruct  him,  or  cause  him  to  be  instructed,  in  the  art  and  calling  of  a 
blacksmith,  which  the  defendant  then  used,  and  to  find  and  allow  to  the 
plaintiff  good  and  sufficient  meat,  drink,  lodging,  washing  and  apparel,  both 
linen  and  woolen,  and  all  other  necessaries,  both  in  sickness  and  in  health, 
during  the  said  term  of  apprenticeship;  and  to  cause  the  plaintiff,  within 
the  said  term,  to  be  taught  to  read  and  write,  and  the  ground  rules  of  ai'ith- 
metic;  and  at  the  expiration  of  the  said  term  to  give  to  the  plaintiff  a  new 
bible,  and  two  new  suits  of  clothes  suitable  to  his  condition  in  life:  As  by 
the  said  indenture,  reference  being  thereto  had,  will  more  fully  appear:  In 
pursuance  of  which  said  indenture,  the  plaintiff,  on  the  day  first  afore- 
said, there  entered  into  the  service  of  the  defendant,  as  such  apprentice  as 
aforesaid,  and  remained  in  such  service,  under  the  said  indenture,  for  a  long 

space  of  time,  to  wit,    from  that  day  until  the day  of,  etc.;  and  the 

plaintiff  did  always,  during  that  space  of  time,  well  and  truly  keep  and 
perform  all  things  in  the  said  indenture  contained,  on  his  part  to  be  kept  and 
performed.  And  although  the  plaintiff  was  always  there  ready  and  willing, 
from  the  day  last  aforesaid  until  the  expiration  of  the  said  term,  to  con- 
tinue well  and  faithfully  to  serve  the  defendant,  and  keep  and  perform 
all  things  in  the  said  indenture  contained,  on  the  part  of  the  plaintiff  to 

J  Walker  v.  Doane,  131  111.  27.  "  Harms  v.  McCormack,  132111. 104. 


COVENANT.  275 

be  kept  and  performed,  whereof  the  defendant  always  there  had  notice; 
yet  the  defendant  did  not  nor  would,  during  the  residue  of  the  said  term, 
instruct  the  plaintiff,  or  cause  him  to  be  instructed,  in  the  said  art  and 
calling  of  a  blacksmith;  nor  did  nor  would  the  defendant,  during  the  said 
residue  of  the  said  term,  find  and  allow  to  the  plaintiff  good  and  sufficient 
meat,  drink,  lodging,  washing  and  apparel,  both  linen  and  woolen,  and  all 
other  necessaries  both  in  sickness  and  in  health;  nor  did  nor  would  the 
defendant,  during  that  time,  cause  the  plaintiff  to  be  taught  to  read  and 
write,  and  the  ground  rules  of  arithmetic;  nor  did  nor  would  the  defend- 
ant give  to  him,  the  plaintiff,  a  new  bible,  and  two  new  suits  of  clothes 
suitable  to  his  condition  in  life,  although  the  plaintiff  did  on,  etc.,  attain 
the  age  of  twenty-one  years.  And  so  the  plaintiff  says,  that  the  defendant 
(though  often  requested  so  to  do)  has  not  kept  his  covenants  aforesaid,  but 

has  broken  the  same;  to  the  damage  of  the  plaintiff  of dollars,  and 

therefore  he  brings  his  suit,  etc. 

In  an  action  of  covenant  by  a  master  against  an  apprentice, 
in  Illinois,  it  would  seem  that  the  declaration  should  sufficiently 
show  an  indenture  in  conformity  with  the  statute  (which  see), 
as  all  indentures,  etc.,  for  the  taking  of  any  apprentice,  etc., 
not  in  conformity  with  the  statute,  are  utterl}'^  void,  as  against 
such  apprentice,  etc' 

No.  154'     On  afire  insurance  policy.     {See  Nos.76  and  77  ante.) 

Title  of  court,  etc.)    A.  B.,  the  plaintiff,  by  E.  F.,his  attorney,  complains 

of  the insurance  company,  defendant,  of  a  plea  of  breach  of  covenant; 

For  that  whereas  on,  etc.,  in  etc.,  by  a  certain  deed  or  policy  of  insurance, 
sealed  with  the  seal  of  the  defendant,  and  bearing  date  of  that  day,  (which 
said  deed  or  pohcy  the  plaintiff  now  brings  here  into  court,)  the  defendant, 
for  the  consideration  therein  mentioned,  did  covenant  with  the  plaintiff  in 
the  terms  of  the  said  deed  or  policy,  which  here  follows  in  these  words  and 
figures,  to  wit:  {Here  insert  the  policy,  verbatim.  If  there  are  conditions, 
or  proposals,  not  in  the  body  of  the  deed,  but  referred  to  therein,  say :  "  And 
the  plaintiff  avers  that  the  conditions  in  the  said  deed  or  policy  mentioned 
are  as  follows  that  is  to  say; "  and  then  insert  the  conditions,  or  projjosals, 
verbatim,  or  snch  parts  thereof  as  constitute  a  condition  precedent.)  And 
the  T^ilSimiSS.  further  a\evs,  {proceeding  as  in  No.  76,  ante,  from  the  one  aster- 
isk to  the  other:)  And  the  plaintiff  further  avers,  that  although  he  has 
kept  and  performed  all  things  in  the  said  deed  or  policy  contained  on  his 
part  to  be  kept  and  performed,  yet  the  defendant,  though  often  thereto  re- 
quested, has  not  paid  to  the  plaintiff  the  amount  of  the  said  loss  and  dam- 
age so  by  him  sustained  as  aforesaid,  or  any  part  thereof,  but  refuses  so  to 
do.     And  so  the  plaintiff  says,  that  the  defendant  has  not  kept  its  covenant 

1  Eev.  Stat.  (1893).  162;  Rev.  Stat.  (1895),  164;  1  Starr  &  Curtis  297;  see 
Ford  V.  McVay,  55  111.  119. 


276  COVENANT. 

aforesaid,  but  has  broken  the  same,  to  the  damage  of  the  plaintiff  of 

dollars,  and  therefore  he  brings  liis  suit,  etc. 

See  the  forms  of  declarations  on  policies  of  insurance,  in  as- 
sumpsit, ante,  pages  137-140  and  the  observations  there  made, 
and  authorities  cited. 

Covenant  will  lie  upon  a  fire  insurance  policy  which  has 
been  renewed,  and  which  provided  that  the  same  might  be 
continued  in  force— the  premium  being  paid,  and  a  renewal 
receipt  given.'  The  original  application  for  insurance  need 
not  be  set  out  in  a  declaration  on  the  policy.  The  insured  is 
not  bound  to  set  out  and  prove  the  truth  of  his  representations. 
It  need  not  be  averred  in  pleading  that  the  notary,  whose  cer- 
tificate formed  a  part  of  the  preliminary  proof  of  loss,  was  the 
nearest  notary  to  the  place  of  the  fire,  if  the  certificate  is  re- 
ceived without  objection;  if  there  is  such  a  formal  defect  in 
the  proof  of  loss,  exception  should  be  taken  in  time  for  the 
assured  to  correct  it.^ 

Under  an  averment  of  a  total  loss,  a  party  may  recover  for 
a  partial  loss,  in  an  action  of  debt  on  an  insurance  policy.'  In- 
surance companies  have  a  right  to  limit  by  their  policies  the 
time  within  which  an  action  shall  be  brought  upon  them." 

In  an  action  on  an  insurance  policy  which  contains  a  condi- 
tion that,  in  the  event  of  a  loss,  the  company  may,  at  its  option, 
restore  the  building,  it  is  unnecessary  to  negative  the  perform- 
ance of  this  condition  in  the  declaration.  It  is  a  condition 
subsequent,  and  if  performed,  the  company  should  allege  it  in 
defense  of  the  action.* 

Where  one  of  three  partners,  who  have  effected  an  insurance, 
afterward,  and  before  a  loss,  assigns  his  interest  to  the  other 
two,  without  any  notice  to  or  consent  by  the  insurers,  the  two 
can  not  recover  on  the  policy,  especially  where  they  so  declare 
in  their  declaration,  and  the  policy  forbids  such  an  assignment. 
An  action  on  a  contract  must  be  in  the  name  of  the  party  in 
whom  the  legal  interest  is  vested.® 

1  Uerron  v.  Ins.  Co.,  28  111.  235.  ^  j^s.  Co.  v.  WliiteMll,  25  111.  466; 

2  Herrcm  v.  Ins.  Co.,  28  111.  235;       Case  v.  Ins.  Co.,  13  111.  676. 

Ins.  Co.  V.  Whitehill,   25   111.   466;  *  Ins.  Co.  v.  WhitehiU,  25  111.  466. 

Ins.  Co.  V.  Staaden,  26  111.  360;  Ins.  Uns.  Co.  v.  Phelps,  27  111.  71. 

Co.  V.  Lewis,  18  III.  553.  * Dix  v.  7ns.  Co.,  22  111,  272;  7ns. 

Co.  V.  Wetmore,  32  lU.  221. 


COVENANT.  2  (  7 

In  an  action  on  a  policy  of  insurance  against  fire,  the  plaintiff 
must  prove  that  he  had  an  insurable  interest  in  the  premises, 
before  he  can  recover.'  The  plaintiff's  interest  should  be  al- 
leged.' A  general  averment  of  interest  is  sufficient."  The  in- 
sured must  generally  have  an  interest  in  the  property  at  the 
time  of  the  loss,  to  entitle  him  to  recover;  but  this  is  not  true 
in  every  case,  for  the  insured  may  have  assigned  his  interest 
with  the  consent  of  the  insurers,  and  in  that  event,  the  suit 
should  be  brought  in  the  name  of  the  insured,  for  the  benefit 
of  his  assignee.* 

No  act  of  the  party  insured,  after  the  assignment  of  the 
policy  with  the  assent  of. the  insurers,  can  inipair  the  rights  of 
the  assignee.*  Policies  of  insurance  are  within  the  purview  of 
the  33d  section  of  the  Practice  Act,  and  may  be  read  in  evi- 
dence without  proof  of  their  execution,  unless  denied  by  plea, 
properly  verified  by  affidavit.* 

Where,  by  the  charter  of  an  insurance  company,  the  charter 
itself  is  made  a  part  of  the  contract  of  insurance,  and  the  in- 
sured is  made  a  member  of  the  company,  he  can  not  plead 
ignorance  of  the  provisions  of  the  charter.^  It  is  impossible 
to  give  a  precedent  that  will  be  applicable  in  every  case,  as  the 
provisions  of  insurance  policies  are  varied.  Although  the 
policy  is  often  copied  into  the  declaration,  it  is  sufficient  to  set 
forth  the  substance  of  the  instrument,  according  to  the  legal 
effect  of  the  material  parts  of  it  on  Avhich  the  plaintiff  intends 
to  rely.* 

Stipulations  and  conditions  indorsed  upon  the  policy  are 
parts  of  it,  and  must  be  set  forth  so  far  as  they  are  materiaL^ 


^  Ins.    Co.   V.  Marseilles,  1   Gilm.  ^  las.  Co.  v.  Wetmore,  32  111.  221; 

236;  Dixv.  Ins.  Co. ,  22  111.  272;  3Iann  3Ioore  v.  Lis.  Co. ,  29  Me.  97. 

Y.  Ins.  Co.,  4  Hill  187;  Carpenter  y.  ^  Ins.  Co.  v.   Marseilles,  1   Gilm. 

Ins.  Co.,  16  Pet.  495;  Birdsey  v.  Ins.  236. 

Co.,  26  Conn.  165;  see  G.  31.  Co.  v.  ■>  Jns.  Co.  v.  Marseilles,  1    Gilm. 

Ass.  Co.,  118  111.  398.  236. 

2  3  Taunt.  513.  « Miles  v .  Sh  eu-a  rd,  8  East  7 ;  Clarke 

3  Granger  v.  7ns.  Co. ,  5  Wend.  200;  v.  Graij,  6  East  564. 

De  Forest  V.  Jjis.  Co.,  1  Hall  84.  ^Strong    v.    Ride,    3    Bing.    315; 

*Ins.  Co.  V.  Wetmore,  32  111.  2^;  Strong  v.  Harvey,  3  Bing.  304. 
Ins.  Co.  V.  McGowan,  16  Md.  47;  see 
Stephens  v.  Ins.  Co.,  43  111.  327. 


278  COVENANT. 

If  the  policy  has  been  altered,  by  consent,  after  execution,  the 
alteration  must  be  set  forth.'  If  the  declaration  consists  of 
several  counts,  the  policy  is  not  repeated,  but  reference  is  made 
to  the  first  count  in  the  subsequent  ones." 

DEFENSES  TO  THE  ACTION  OF  COVENANT. 

Pleas  in  abatement. — For  pleas  in  abatement,  and  observa- 
tions thereon,  see  Defenses  to  an  Action,  ante,  chapter  III. 

Pleas  in  bar. — For  g-eneral  observations  upon  pleas  in  bar, 
see  Defenses  to  an  Action,  ante,  chapter  III. 


Term,  18  — . 


No.  155.    Plea  of  non  est  factum. 
In  the Court. 

C.  D.  ) 
ats.    V  Covenant. 

A.  B.  )  And  the  defendant,  by  G.  H.,  his  attorney,  comes  and  defends, 
the  wrong  and  injury,  when,  etc.,  and  says,  that  the  said  supposed  inden- 
ture {or  "  deed,"  or  "  the  said  writing")  in  the  said  declaration  mentioned 
is  not  his  deed;  and  of  this  he  puts  himself  upon  the  country,  etc. 

There  is,  strictly  speaking,  no  general  issue  in  covenant,  for 
the  plea  of  non  est  factum  only  puts  the  deed  in  issue,'  and  ad- 
mits all  the  other  material  averments  of  the  declaration.* 
The  defendant  must  therefore  plead  specially  every  matter 
which  it  would  be  necessary  to  plead  in  debt  on  a  bond  or  other 
specialty.  Under  the  plea  of  non  est  factum,  however,  the  de- 
fendant may  on  the  trial  avail  himself  of  a  variance  in  the 
statement  of  the  deed,  either  in  respect  of  a  misstatement  or 
of  the  omission  of  a  covenant  qualifying  the  contract;  and  this 
although  the  defendant  has  agreed  to  admit  on  the  trial  the 
due  execution  of  the  deed;  and  if  the  plaintiff  omits  to  state  a 
condition  precedent,  the  defendant  may  crave  oyer,  and  set 
out  the  deed,  and  demur."    And  the  plea  of  non  est  factum  is 

» 3  Chit.  PI.  188.  Cooper  v.    Watson,  10  Wend.  303; 

''Stiles  V.  Nokes,  7  East  505.  Kam  v.  Sanger,  14  Johns.  89;  Lara- 

3  Chit.  PI.  438;  Longley  v.  Norvall,  way  v.  Perkins,  10  N.  Y.  (6  Selden) 

1  Scam.  389;    Norman  v.  Wells,  17  871;    Reynolds  v.   Rogers,    5    Ohio 

Wend.  136;  Hebbard  v.  Deplain,  3  169. 

Hill  187;  Dale  v.  Roosevelt,  9  Cow.  n  Chit.   PI.   438;  Howell  v.  Rich- 

307;  Granger  v.  Granger,  6  Ohio  35.  ards,  11  East  639. 

*McNeish  v.  Stewart,  7  Cow.  474; 


COVENANT.  279 

such  a  general  issue  that  notice  of  set-off,  or  other  matter  in 
bar,  may  be  given  with  it.' 

In  Illinois,  this  plea  does  not  put  the  plaintiff  upon  proof  of 
the  execution  of  the  deed,  unless  verified  by  affidavit.  See 
the  form  of  the  affidavit,  ante^  Ko.  137.  Where  several  defend- 
ants unite  in  a  plea  of  non  est  factum^  if  the  instrument  appears 
to  be  the  deed  of  any  one  of  those  so  uniting  in  the  plea,  the 
issue  must  be  found  for  the  plaintiff.^ 

See  the  observations  under  the  plea  of  non  est  factum,  in 
Debt,  j96>5^,  chap.  XIII. 

A  plea  of  non  in f regit  conventionem  is  bad  on  demurrer, 
though  it  would  be  aided  after  verdict; '  at  least  it  is  not  a  good 
plea  where  the  breach  is  in  the  negative,*  if  it  is  ever  good. 
But  where  issue  is  joined  on  such  a  plea,  the  effect  of  it  is  to 
deny  every  matter  which  goes  to  constitute  a  breach.^  It  is 
not  a  general  issue.' 

No.  156.    Plea  of  payment— To  action  on  covenant  for  payment  of  money. 

{If  pleaded  as  a  first  plea,  commence  as  indicated  in  the  observation  under 
this  form;  if  as  a  second  or  subsequent  plea,  commence  as  folloivs:)  And 
for  a  further  plea  in  his  behalf,  the  defendant  says  that  the  plaintiff  ought 
not  to  have  his  aforesaid  action  against  him,  the  defendant,  because  he 

says,  (*)  that  on  the  said day  of,  etc.,  in  the  county  aforesaid,  he  did 

pay  to  the  plaintiff   the  said  sum  of dollars,  in  the  said  indenture 

mentioned  :  And  of  this  the  defendant  puts  himself  upon  the  country,  etc. 

The  commencement  of  2b  first  plea  (except  non  est  factum)  is, 
after  the  title  of  the  court,  etc.,  in  this  manner:  "And  the  de- 
fendant by  G.  H.,  his  attorney,  comes  and  defends  the  wrong 
and  injury,  when,  etc.,  and  says  that  the  plaintiff  ought  not  to 
have  his  aforesaid  action,"  etc. 

Pleas  as  to  a  part,  etc. — If  there  are  several  breaches  of 
covenant  assigned,  or  if  there  are  several  counts,  and  the  plea 
is  not  an  answer  to  all  of  them,  it  is  to  be  limited  accordingly 

^  Cotircier  V.  Gra/iam,  1  Ohio  330;  "*  Bac.    Abr.   Cov.    L. ;   Phelps  v. 

Granger  v.  Granger,  Q  Ohio  3^y,    see  Saicyer,    1     Aik.    150;     Bender    v. 

Lonqley  v.  Norvall,  1  Scam.  389.  Fromberger,    4    Dall.    (U.    S.)    436; 

»  CJ.  S.  V.  L«m,  1  How.  (U.  S.)  104.  Roosevelt   v.    Fulton,    7    Cow.    71; 

8  1  Chit.  PI.  438;  Hodgson  v.  Fast  Story's  PI,  213;  2  Swan's  Pr.  750, 

India  Co.,  8  T.  R.  278;  Com.  Dig.  ^  Roosevelt  v.  Fulton,'!  Cow.  71. 

Pleader,  3  V.  5;  Roosevelt  v.  Fulton,  « 1  Aik.  (Vt.)  170. 
7  Cow.  71. 


280  COVENANT. 

in  the  commencement,  thus :  "  And  for  a  further  plea  in  this 
behalf,  as  to  the  supposed  breach  of  covenant  first  above 
assigned,  the  defendant  says,"  etc.;  or,  "  as  to  so  much  of  the 
supposed  breach  of  covenant  secondly  above  assigned  as  relates 
to,"  etc.;  or,  "  as  to  the  tJiird  count  of  the  said  declaration;" 
and  so  on,  restricting  the  plea  to  the  breach  or  count,  or  part 
thereof,  which  it  is  designed  to  answer.  (See  page  57.)  A 
plea  of  tender  as  to  a  part  begins,  "And  the  defendant,  by,  etc., 
comes,  etc.,  and  as  to  the  supposed  breach  of  covenant  first 
above  assigned,  so  far  as  the  same  relates  to dollars,  par- 
cel of  the  said  sum  of dollars  in  the  said  declaration  men- 
tioned says  that  the  plaintiff  ought  not  to  have  his  aforesaid 
action  against  him,  the  defendant,  to  recover  any  greater  dam- 
ages than  the  said  sum  of,  etc.,  {the  sum  tendered,)  on  occasion 
of  the  said  supposed  breach  of  covenant  in  this  behalf,  because 
he  says,"  etc.  ;  and  concludes  by  praying  "  judgment  if  the 
plaintiff  ought  to  have  his  aforesaid  action  to  recover  any 
greater  damages  than  the  said  sum  of,  etc.,  on  occasion  of  the 
said  supposed  breach  of  covenantors^  above  assigned,"  etc. 
And  in  any  plea  concluding  with  a  verification,  if  the  conclu- 
sion is  Avritten  out  in  full,  the  prayer  of  judgment  ought  to  cor- 
respond with,  and  be  founded  upon,  the  premises  in  the  plea. 

In  a  plea  of  set-off  to  any  one  of  several  breaches,  the  de- 
fendant alleges  that  the  sum  due  to  him  "  exceeds  the  damages 
sustained  by  the  plaintiff  on  occasion  of  the  said  supposed 
breach  of  covenant  first  above  assigned,"  and  offers  to  set  off 
to  the  plaintiff  "  so  much  as  will  be  sufficient  to  satisfy  the 
damages  by  him  sustained  on  occasion,"  etc. 

Plea  to  several  counts  on  the  same  instrument. — Where 
there  are  several  counts  on  the  same  instrument,  and  the  plea 
is  intended  to  apply  to  all  such  counts,  it  may  allege,  in  the 
proper  case,  "  that  the  supposed  indenture  in  the  said  first 
count  of  the  said  declaration  mentioned,  and  the  supposed  in- 
denture in  the  said  second  count  of  the  said  declaration  men- 
tioned, were  and  are  one  and  the  same  indenture^  and  not 
other  or  different." 

A^o.  157.     Plea  of  performance, 

{As  in  the  last  precedent,  to  the  asterisk,  and  then  proceed:)  that  he,  the 
defendant,  did  (here  state  the  performance  in  the  words  of  the  covenant  if 


COVENANT.  281 

in  the  affirmative  and  conclude  as  folloivs:)  according  to  the  form  and  effect 
of  the  said  indenture,  and  of  the  said  covenant  by  the  defendant  in  that 
behalf  made  as  aforesaid:  And  of  this  the  defendant  puts  himself  upon 
the  country,  etc. 

The  plea  of  covenant  performed,  where  it  is  not  sustained, 
admits  nothing  more  than  the  plaintiff's  right  to  recover 
nominal  damages.* 

No.  158.    Plea,  to  declaration  by  apprentice  on  indenture,  that  plaintiff 
deserted  defendant's  service. 

(First  plea,  non  est  factum;  second  plea  as  in  No.  156,  ante,  to  the  aster- 
isle,  and  then  proceed:)  that  after  the  making  of  the  said  indenture,  and  before 
the  expiration  of  the  said  term  of  apprenticeship  therein  mentioned,  to  wit, 
on,  etc.,  the  plaintiff  wrongfully,  and  without  the  license  or  consent  of  the 
defendant,  there  deserted  and  left  the  service  of  the  defendant,  and  did 
not  at  any  time  afterwards  return  thereto  :  And  the  defendant  further 
says,  that  he  did  continually,  from  the  making  of  the  said  indenture  until 
the  plaintiff  so  deserted  and  left  the  service  of  the  defendant  as  afoi'esaid, 
well  and  truly  keep  and  perform  all  things  in  the  said  indenture  contained, 
and  on  his  part  to  be  kept  and  performed  within  that  time;  and  that  dur- 
ing the  residue  of  the  said  term  he  was  ready  and  willing  to  well  and  truly 
keep  and  perform,  and  would  have  well  and  truly  kept  and  performed,  all 
things  in  the  said  indenture  contained,  on  his  part  to  be  kept  and  performed 
during  the  said  residue  of  the  said  term,  if  the  plaintiff  had  not  so  deserted 
and  left,  or  had  returned  to,  the  service  of  the  defendant.  And  this  he, 
the  defendant,  is  ready  to  verify;  wherefore  he  pr^ys  judgment  if  the 
plaintiff  ought  to  have  his  aforesaid  action,  etc. 

For  other  pleas  in  covenant,  see  the  special  pleas  in  assump- 
sit and  debt,  which  may  readily  be  adapted  to  this  form  of  ac- 
tion. The  plaintiff  may,  as  we  have  seen,  plead  no7i  est  factum^ 
and  give  notice  therewith  of  any  special  matter  of  defense. 

Pleas  in  covenant  so  much  depend  on  the  particular  facts  of 
each  case,  that  it  would  not  be  practicable,  in  a  concise  work 
like  this,  to  give  more  than  a  few  general  forms.  For  repli- 
cations, demurrers,  etc.,  see  the  same  subjects  in  Defenses  to  an 
Action,  ante,  chapter  III. 

^Reed  v.  Hobhs,  2  Scam.  297. 


CHAPTER  VIII. 

TROVER. 

Trover  is  a  common  law  action,  in  common  use  in  England 
and  in  many  of  the  states  of  the  Union,  to  recover  the  value 
of  personal  propertv  wrongfully  converted  by  another  to  his 
own  use.  The  plaintiff  declares  in  substance,  that  on  a  certain 
day  he  was  lawfully  possessed  of  a  certain  chattel,  and  casually 
lost  the  same;  that  it  came  into  the  possession  of  the  defendant 
by  finding;  and  that  the  defendant  has  refused  to  deliver  it  to 
the  plaintiff  and  has  converted  it  to  his  own  use.  This  action 
is  one  form  of  trespass  on  the  case. 

In  the  distant  age  when  it  was  first  used,  the  declaration 
may  have  narrated  accurately  the  facts  of  the  case;  but  for  a 
long  time  the  losing  and  finding  have  been  regarded  as 
mere  legal  fictions,  which  the  defendant  is  not  at  liberty  to 
deny. 

Where  the  action  lies. — Trover  lies  for  any  species  of 
goods  and  chattels — as  for  a  horse,  a  ship,  or  anything  that  can 
be  identified;  for  a  chose  of  action — as  a  promissory  note,  bank 
bill,  bond,  deed,  mortgage;  for  coins,  medals,  plants  in  boxes; 
for  animals  valuable  as  merchandise,  whether  reclaimed  or  not; 
for  a  dog; '  for  animal  fercB  naturce,  if  reclaimed,  but  other- 
wise not;  and  for  wild  animals  which  have  strayed  away  with- 
out gaining  their  natural  liberty.^ 

It  will  lie  for  the  wrongful  conversion  of  valuable  papers,  or 
evidences  of  title  to  real  or  personal  property,  for  checks,  bills 
of  exchange,  drafts,  certificates  of  stock  in  incorporated  com- 
panies, securities  of  any  kind,  books  of  record  and  account, 
vouchers,  etc.,  and  insurance  policies.* 

^  Gumming s  v.    Perham,  1  Mete.  ^ Hays  v.  Life  Ins.  Co.,  125  111.  Q2Q; 

(Mass.)  555.  Bank  v.  Meadowcroft,   95  111.  124; 

■Amory  v.  Flyn,  10  Johns.  103^  Garvin  v.  Wiswell,  8S  I\\.  215;  Can- 
Leonard  V.  Belknap,  47  Vt,  693.  field  v.  Monger,  12  Johns.  347;  Svdr 

(282) 


TKOVER. 


2S3 


Trover  will  lie  for  manure  lying  upon  the  ground  and  not 
incorporated  with  the  soil.'  It  may  be  maintained  for  a  prom- 
issory note  which  has  been  paid  and  by  mistake  left  with  the 
holder.^  It  lies  for  a  building  removed  from  the  freehold,  if  it 
had  been  erected  under  an  agreement  that  it  should  be  treated 
as  personal  property;  ^  but  it  will  not  lie  for  a  fixture.* 

A  trustee  with  the  mere  naked  title  to  personal  property, 
may  maintain  trover  for  it.''  And  a  finder  of  goods  has  a  suf- 
ficient title  for  this  purpose.®  Trover  lies  by  an  administrator 
for  a  conversion  in  the  lifetime  of  his  intestate; '  and  against 
executors  for  a  conversion  in  the  lifetime  of  their  testator.*  A 
mortgagor  may  maintain  the  action.* 

Trover  can  not  be  maintained  for  an  article  sold  under  con- 
tract of  pledge.'"  If  one  employed  to  sell  goods  on  commission 
pawns  them  the  owner  may  have  trover  after  demand  and  re- 
fusal." It  lies  against  a  carrier  who,  by  mistake,  delivers  goods 
to  a  wrong  person.'''     It  lies  against  difi'erent  individuals  for 


bury  V.  Steaims,  21  Pick,  148;  Loiore- 
more  v.  Berry,  19  Ala.  130;  Alex- 
anders. Bundle,  75  III.  85,  JarvisY. 
Rogers,  15  Mass.  389;  Stone  v. 
Clough,  41  N.  H.  290;  Nettleton  v. 
Biggs,  1  Root  (Conn.)  125;  Gristvold 
V.  Judd,  1  Eoot  (Conn.)  221;  Allison 
V.  King,  25  Iowa  56;  Keeler  v.  Fas- 
sett,  21  Vt.  539;  Olds  v.  Board  of 
Trade,  33  lU.  App.  445. 

^  Pinkham  v.  Gear,  3  N.  H.  484; 
Stone  V.  Proctor,  2 Chip.  116;  Strong 
V.  Doyle,  110  Mass.  92. 

^Pierce  v.  Gilson,  9  Vt.  216; 
Graves  v.  Dudley,  20  N.  Y.  (6  Smith) 
76. 

^  Davis  V.  Taylor,  41  111.  405;  Smith 
V.  Benson,  1  Hill  176;  Dame  v.  Dame, 
88  N.  H.  429;  Parker  v.  Goddard, 
39  Me.  144;  Pullen  v.  Bell,  40  Me. 
314. 

*LemanY.  Best,  30  111.  App.  323 
Prescott  V.  Wells,  3  Nevada  82 
Guthrie  v.  Jones,  108  Mass.  191 
Darrah  v.  Baird,  101  Pa.  St.  265. 


^Thompson  v.  Ford,  8  Ired.  418; 
Coleson  v.  Blanton,  3  Hayw.  152; 
see  Hutton  v.  Arnett,  51  111.  198. 

^  Clark  V.  Malloney,  3  Harring.  68; 
Cook  V.  Patterson,  35  Ala.  102;  Mc- 
Avoy  V.  Medina,  11  Allen  (Mass.) 
548. 

''Parrottv.  Dubignon,  Charlt.  261; 
Towle  V.  Lovett,  6  Mass.  394;  Weiser 
V.  Zeisinger,  2  Yeates  537;  Pressey 
V.  Powers,  82  111.  125;  Bressler  v. 
Baum,  42  III.  App.  190. 

8  Decroio  v.  Mone,  1  Hayw.  21 ; 
Clark  V.  Kenan,  IHayw.  308;  Avery 
V.  Moore,  1  Hayw.  362; 

^Badger  v.  Mfg.  Co.,  70  111.  302; 
Parkhurst  v.  Jacobs,  17  Mich.  302; 
Forth  V.  Pursley,  82  111.  152. 

10  Harris  v.  Thomas,  37  111.  App. 
517;  Cole  v.  Dalziel,  13  111.  App.  23; 

"  Hydev.  Noble,  13  N.  H.  494;  Car- 
penter V.  Hale,  8  Gray  (.Mass.)  157. 

"  I.  C.  R.  B.  V.  Parks.  54  111.  294; 
R.  R.  Co.  V.  Herndon,  81  111.  143. 


2S4  TKOVER. 

successive  conversions  of  the  same  property,  but  the  plaintiff 
can  receive  but  one  satisfaction.' 

AVhere  a  party  has  been  induced  to  sell  goods  upon  a  credit, 
by  false  and  fraudulent  representations,  he  may  disaffirm  the 
sale  and  bring  his  action  of  trover  or  replevin  for  the  recovery 
of  the  property  obtained  by  the  fraud,  or  damages  for  its  con- 
Aversion/  Where  crops  are  raised  upon  land  without  license 
or  authority  trover  may  be  maintained  by  the  owner  of  the 
land  for  the  recovery  of  the  value  of  such  crops.^  A  general 
owner  may  maintain  the  action  against  any  person  taking  the 
goods  out  of  the  possession  of  his  agent.* 

Trover  will  lie  for  stolen  property  against  a  purchaser 
thereof,  without  a  prosecution  or  conviction  of  the  thief. 
Markets  overt^  as  known  to  the  common  law,  are  unknown  in 
Illinois.^  A  person  who  aids  a  mortgagor  of  personal  j^roperty 
in  carrying  it  away  and  concealing  it  will  be  liable  therefor 
to  the  mortgagee  in  an  action  of  trover,  even  though  he  was 
ignorant  of  the  existence  of  the  mortgage.' 

In  trover  for  the  unlawful  seizure  of  goods,  the  fact  that 
the  plaintiff  may  have  reclaimed  them,  or  that  they  may  have 
been  returned,  does  not  go  in  bar  of  the  action,  but  merely  in 
mitigation  of  damages.'  "Where  the  cattle  of  one  person 
break  into  the  enclosure  of  another  and  eat  and  destroy  the 
growing  crop  of  the  latter,  his  remedy  is  not  trover  but  tres- 
pass." Driving  a  horse  a  greater  distance  than  is  agreed,  or 
in  a  different  direction,  will  be  conversion.' 

^  Matthews  Y.  Menedger,  2  M.cLeKn.  Parks,  AS  1\\.  511;   Rogers  \.  Huie, 

145;  see  Bailey  v,  Godfrey,  54  111.  1  Cal.  429;  Cassidy  v.  Cattle  Co.,  58 

507.  111.  App.  39. 

2  Gray  v.  St.  John.  35  111.  222;  see  ^Flanders   v.  Colby,  8  Foster  (N. 

Gibbs  V.  Jones,  46  111.  319;  Faru^ell  H.),  34;   Hoivie  v.  Briggs,  98   Mass. 

V.  Hanchett,  120  111.  573.  510;  Spraights  v.  Hawley,  39  N.  Y. 

^  Sinipkins  v.  Rogers,  15  111.  397.  441. 

*  Cooper  V.    Cooper,    132  111.   80.  ''Smith  v.  Douming,    6  Ind.   374; 

Lantz  V.   Drum,  44    111.    App.    607;  Sjmrks  v. Purdy,  11  Mo.  219;  Gfreen- 

Gauchev.  3Iayer,  27  III.  ISA;  Cannon  field  v.  Leavitt,  17  Pick.  1;    Gibbs  v. 

V.  Kinney,  3  Scam.  9.  Chase,  10  Mass.    125;    Wheelock  v. 

^  Newkirk  Y.  Dalton,   17  111.  413;  Wheelu-right,  5  Mass.  lOi;  Barrelett 

Hoffman  v.    Caroiv,  22  Wend.  285;  v.  Bellgard,  71  111.  280. 

Curtisv.  Cane,  32  Vt.  232;  Haddexx.  « Smith  v.  Archer,  53  111.  241. 

Einstman,  14  Bradw.  443;   Sharp  v.  ^  Wheelock  v.  Wheelright,  5  Mass. 


TKOVEE.  285 

If  a  bailee  for  a  special  purpose  used  the  property  for  an- 
other purpose,  without  leave  of  the  owner,  he  is  liable  as  for  a 
conversion ;  yet  this  should  be  understood  only  of  such  an  use 
as  occasions  an  injury  or  damage;  and  the  damage  or  injury, 
and  not  the  value  of  the  property,  would  be  the  measure  of  the 
damages  to  be  recovered,  if  the  propert}^  is  returned.  Where 
no  injury  is  sustained  only  nominal  damages  can  be  recovered. 
Such  an  use  of  property  by  bailee  as  is  without  detriment  to 
the  bailor,  does  not  amount  to  a  conversion.' 

Where  the  defendant  received  oxen  Irom  the  plaintiff,  to  be 
kept  until  a  particular  time,  and  before  the  expiration  of  the 
time  sold  a  portion  of  them,  it  was  held  that  the  plaintiff  Avas 
entitled  to  recover  the  value  of  the  oxen  at  the  time  of  their 
conversion  by  the  defendant.^  Trover  will  lie  in  case  of  irreo-- 
ularities  in  disposing  of  property  contrary  to  the  statute  by 
the  landlord  after  distress. ' 

By  statute  in  Illinois,  trover  may  be  maintained  for  money 
or  other  valuable  thing  lost  at  gaming.*  Where  trespass  de 
bonis  asportatis  will  lie,  trover  may  be  sustained.^  One  tres- 
passer or  wrongdoer  can  not  maintain  trover  against  the  other.® 
Trover  will  lie  against  one  partner  who  converts  to  his  own 
use  property  which  has  been  entrusted  to  his  firm  for  manu- 
facture.' 

A  wife  is  jointly  liable  with  her  husband  for  a  tort;  and 
trover  lies  against  both  for  a  joint  conversion.*  The  possession 
honafide  of  goods  gives  a  sufficient  right  to  enable  the  possessor 


104;  Homer  v.  Thwing,  3  Pick.  392 
Campbell  v.  Stakes,  2  Wend.  137 
Lucas  V.    Trumbull,   15  Gray   306 


<1  Starr  &  Curtis  792;  Rev.  Stat. 
(1893),  492;  Rev.  Stat.  (1895),  535; 
Richardson    v.   Kelly,    85    111.    491; 


Perhamv.  Coney,  117  Mass.  102;  Fciil  Winchester  v.  Rounds,  55  111.  451 

V.  McArthur,  31  Ala.  26.  ^Haines    v.    Briggs,    9    Ark.    46 

1  Johnson  v.    Weedman,  4  Scam.  Pierce  v.   Benjamin,  14   Pick.  356 

495;    Campbell  v.  Stakes,   2  Wend.  Drew  v.  Spaulding,  45  N.  H.  472 

137;  Crocker  v.  Gullifer,  44  Me.  491;  31eade  v.  Smith,  16  Conn.  r45. 

Pillsbury   v.  Webb,   33    Barb.    213;  « Turley  v.  Tucker,  6  Mo.  583;  R. 

Hart  V.  Skinner,  16  Vt  138;   Green  R.  Co.  v.  Ellsey,  85  Pa.  St.  283. 

v.  Sperry,  16  Vt.  390.  ''Stevens  v.  Faiccett,  24  111.  483. 

Wtter  v.    Williams,   21   111.    118;  ^  Davis  v.  Taylor,  41  III  405;  Hut- 
Thrall  v.  Lathrop,  30  Vt.  307.  ton  v.  Arnett,  51  Ul.  198. 

3  Tripp  V.    Grouner,  60  111.   474; 
Shutz  V.  Baker,  38  III.  App.  349. 


2SG  TROVEK. 

to  maintain  trover  against  a  wrongdoer.'  If  the  possession  of 
property  is  fraudulently  obtained  from  a  bailee  by  the  general 
owner,  the  bailee  may  maintain  trover  for  his  property  against 
either  the  owner  or  his  subsequent  vendee."  A  person  owning 
property  mingled  with  that  of  another  may,  on  its  conversion, 
maintain  trover.' 

By  tenant  in  common.— Trover  can  not  be  supported  by  one 
joint  tenant,  tenant  in  common  or  co-parcener  against  his  co- 
tenant  for  a  thing  still  in  the  latter's  possession,  because  the 
possession  of  one  is  the  possession  of  both;  *  but  if  the  co-tenant 
destroys '  or  sells  the  property,"  or  assumes  exclusive  control 
over  it,'  the  other  may  maintain  this  action  against  him. 

By  statute,  in  Illinois,  a  joint  tenant,  tenant  in  common  or 
coparcener  may  have  his  action  of  trespass  or  trover  against 
his  co-tenant,  if  the  latter  "  shall  assume  and  exercise  exclusive 
ownership  over,  or  take  away,  destroy  or  lessen  in  value,  or 
otherwise  injure  or  abuse"  the  common  property.*  Under 
this  statute  it  has  been  held  that  trover  may  be  maintained  for 
the  conversion  of  a  promissory  note,  or  the  proceeds  thereof, 
although  the  plaintiff  and  defendant  were  jointly  interested  in 
the  note.® 

Against  an  oiflcer. — Trover  lies  against  an  officer  for  goods 
sold  on  execution  which  are  by  law  exempt  from  such  sale; '" 

»  Coffin  V.  Anderson,  4  BlacM.  395;  *  Case  v.  Hart,  11  Ohio  364;  Wil- 
Lamb  v.  Clark,  30  Vt.  347;  Cook  v.  son  v.  Beed,  3  Johns.  175;  Needham 
Patterson,  35  Ala.  102;  Vining  v.  v.  Hill,  127  Mass.  123;  Heath  v.  Hub- 
Baker,  53  Me.  544;  Watty.  Scqfield,  bard,  4  East  121;  1  Chit.  PI.  144; 
76  111.  261;  see  Hollenbeck  v.  Todd,  White  v.  Osborn,  21  Wend.  76. 
19  111.  App.  452.  '  Wheeler  v.   Wheeler,  33  Me.  347; 

*  McConnel  v.  Maxicell,  3  Blackf.  Webb  v.  Mann,  3  Mich.  139;  Permin- 

419;  Hyde  v.  Noble,  13  N.  H.  494.  ter  v.  Kelly,  18  Ala.  716. 

» Jackson  v.  Anderson,  4  Taunt.  24;  ^2  Starr  &  Curtis  1376;  Eev.  Stat. 

Whitehouse  v.  Frost,  12  East.  614;  (1893),    882;    Kev.    Stat.   (1895),  932; 

Bank  v.  Meadowcraft,  95  111.  124.  see    Benjamin    v.    Stremple,  13  111. 

*2  Saund.  47;  St.  John  v.  Stand-  46&;  Boyle    v.    Levings,  28    111.  314; 

ring,2Johns.4GS;  3Iersereauv.  Nor-  Sicartwout    v.    Evans,  37  111.   442; 

ton,  15  Johns.  179.  Carter  v.  Wingard,  47  III.  App.  296. 

-"Martyn    v.  Knoll,  8    T.  R.  146;  ^  Boyle  v.  Levings,  28  111.  314. 

WtZ&m/iam  V.  Snow,  2  Saund.  47,  h;  ^^  Davlin   v.    Stone,   4  Cush.  359; 

Goel  V.  Morse,  126  Mass.  480;  Weld  Stephens  v.  Laivson,  7  Blackf.  275; 

V.  Oliver,  21  Pick.  559;  Delaney  v.  McCoy  v.   Brennan,  61   Mich.  362; 

Boot,  99  Mass.  546.  Howard  v.  Cooper,  45   N.  H.  339; 


TKOVEE.  287 

or  against  an  officer  who  seizes  property  by  virtue  of  process 
and  sells  it  without  notice; '  or  where  he  seizes  the  property  of 
one  person  on  a  writ  of  execution  against  another."  The  re- 
moval and  detention  of  the  personal  property  of  a  stranger, 
by  an  officer  acting  by  the  direction  of  the  party,  is  a  conver- 
sion by  both  aside  from  any  demand  and  refusal;'  but  a  judg- 
ment creditor  is  not  liable  for  a  wrongful  seizure  or  sale  by  the 
sheriff  on  the  execution,  which  he  did  not  direct  or  assent  to/ 

Where  the  sheriff  sells  the  property  of  a  partnership,  as  the 
individual  property  of  one  partner,  on  a  writ  of  execution 
against  such  partner  individually,  he  is  liable  in  trover  to  the 
other  partner  therefor;  and  the  plaintiff  is  entitled  to  recover 
the  value  of  his  individual  share  in  the  property  so  sold  with- 
out regard  to  the  state  of  the  partnership  accounts/  Trespass 
may  also  be  maintained  in  such  case/  Trover  lies  against 
the  purchaser  and  constable  for  the  landlord's  share  of  a  crop 
seized  and  sold  on  execution  against  the  tenant/ 

By  an  officer. — A  sheriff  or  constable  who  has  seized  goods 
on  execution  or  attachment,  has  a  special  property  in  them, 
and  may  maintain  trover  for  them;  *  but  a  custodian  appointed 
by  such  officer  can  not  maintain  the  action/ 

Conversion  the  gist  of  the  action — What  constitutes. — 
Conversion  consists  in  any  tortious  act  by  which  the  defend- 

Sanbom  v.    Hamilton,    18  Vt.  589;  *Averilly.  Williams,  1  Denio  501; 

Belon  V.  Bobbins,  76  Wis.  416.  Mulheisen  v.  Lane,  82  111.  117. 

1  Wright  v.  Spencer,  1  Stew.  576;  '  Walshv.  Adams,  3  Denio  (N.  Y.), 

Perkins  v,  Johnson,  3  N.  H.  144.  125. 

'  Jamison  v.  Hendricks,  2  Blackf.  ^  Smyth  v.  Tankersley,  20  Ala.  212; 
94;  Sanborn  V.  Hamilton,  18  Vt.  590;  Markley  v.  Rand,  12  Cal.  275. 
McFarland  v.  Farmer,  42  N.  H.  386;  '  Case  v.  Hart,  11  Ohio  364;  Fall- 
Locke  y.  Garrett,  16  Ala.  698;  Han-  man  v.  Turck,  26Barh.  167;  Champ- 
chett  V.  Williams,  24  111.  App.  56;  ney  v.  Smith,  15  Graj'  512;  Home  v. 
Duncan  v.  Stone,  45  Vt.  118;  Robin-  Briggs,  98  Mass  510;  Mead  v. 
son  V.  McDonald,  2  Geo.  116.  TJiompson,  78  III.  62. 

^Calkins  v.   Lockwood,  17  Conn.  ^Gardner  v.    Willis,    Breese  368; 

154;    Christopher   v.    Covington,  2  Davidson  v.  Waldron,   31    III.    120; 

Mon.    359;  Libby  v.   Soide,  1  Shep.  Mulheisen  v.  Lane,  82  111.117;  Rich- 

310;  Hanchett  v.   Williams,  24  III.  ard^on  v.  Rardin,  88  111.  124. 

App.  56;    Duncan  v.   Stone,  45  Vt.  ^  Ludden  v,  Leavitt,  9  Mass.  104; 

118;  Robinson  v.  McDonald,  2  Geo.  Warren  v.  Leland,  9  Mass.  265;  see 

116;  Burgin  v.  Burgin,  1  Ired.  453.  Common,  v.  Morse,  14  Mass.  217. 


28  S  TROVER. 

ant  deprives  the  plaintiff  of  his  goods,  either  wholly  or  for  a 
time.'  Cutting  growing  corn,  and  carrying  it  away,  will  be  a 
conversion  of  it  sufficient  to  sustain  trover.^ 

There  may  be  a  conversion  by  the  wrongful  taking  of  per- 
sonal property;  by  some  illegal  assumption  of  ownership;  by 
illegally  using  or  misusing  property;  or  by  its  wrongful  deten- 
tion. If  a  person  fraudulently  sues  out  a  writ  of  replevin, 
and  thereby  obtains  possession  of  property,  and  then  dismisses 
his  suit,  it  will  be  an  illegal  taking  and  assumption  of  owner- 
ship of  the  property,  and  a  sufficient  proof  of  conversion,  ren. 
dering  a  demand  unnecessary  to  sustain  an  action  of  trover.^ 
The  wrongful  assumption  of  the  property  in,  or  the  right  to 
dispose  of  the  goods,  may  be  a  conversion  in  itself,  and  render 
unnecessary  a  demand  and  refusal."  If  a  person  has  a  lien  on 
property  for  a  special  purpose,  and  applies  it  to  another  pur- 
pose, it  is  a  waiver  of  the  lien,  and  a  conversion.'  And  if  a 
person,  having  a  lien  on  property,  upon  being  requested  to  de- 
liver it  up,  claims  to  retain  it  on  a  different  ground  from  that 
upon  which  he  rests  his  lien,  he  waives  such  lien,'  as  well  as 
any  tender  of  charges.' 

Where  one  of  two  joint  owners  of  personal  property  de- 
mands of  the  other,  not  the  joint  use  and  possession,  as  joint 
owner,  but  the  property  as  sole  owner,  the  latter  is  at  entire 
liberty  to  disregard  such  a  demand.  To  make  a  demand  avail- 
able under  such  circumstances,  the  party  making  it  should  de- 
mand the  equal  enjoyment  of  the  property  as  joint  owner.* 

»  2  Stark.  Ev.  842;  3  Stepli.  N.  P.  '  <^offin  v.  Anderson,  4  Blackf,  396; 

2704;  Ins.  Co.  v.  Cochran,  27  Ala.  C^ark    v.  Rideout,   39    N.    H.  238; 

228;  N.  T.  Co.  v.  Sellick,  52  111.  249;  Thrall  v.  Lathrop,   30  Vt.    307;  see 

Tran.  Co.  v.  Mallory,  157  111.  554.  Johnson  v.  Woodman,  4  Scam.  495. 

^Pierrepont  v.  Barnard,  5  Barb.  ^Boardmanv.  Sill,  1  Camp.  410; 

364;  Nelson  v.  Burt,  15  Mass.  204.  3  Steph.  N.  P.  2694;  West  v.  Tupper, 

^Bruner  v.  Dyball,  42  111.  34;  see  1  Bailey   (S.  C.)  193;  Beniorv.Pac- 

Ogden  v.  Lucas,  48  111.  492;  R.  R.  g.uin,  40  Vt.  199. 

Co.v.  Trenton  Car  Co.,  3  Vroom  "•  Boardman  v.  Sill,  1   Camp.  410; 

517.  2  M.  &  S.  298;  West  v.    Tupper,  1 

^McComliev.  Davies,Q  East  538;  Bailey  (S.   C.)  193;  3  Steph.  N.  P. 

Reynolds  v.  Shider,   5  Cowen  323;  2681;  11  Rich.  Law  (S.  C.)  267;  3  H. 

Bissel  V.  Drake,  19  Johns.  66;  Raw-  &  N.  931. 

son  V.  Tuel,  47  Maine  596;  1  Chit.  ^  Swartwout  v.  Evans,  37  111.  443. 
PI.  141. 


TKOVER.  289 

An  adulteration  of  liquor  by  a  carrier,  or  his  servant,  will  be 
a  conversion  of  it.^  The  fraudulent  mixing,  by  one  person,  of 
his  own  goods  with  the  goods  belonging  to  another,  in  such  a 
manner  that  the  property  of  each  can  no  longer  be  distin- 
guished, constitutes  a  confusion  of  goods,  if  the  goods  mixed 
are  of  unequal  value,  and  the  innocent  party  is  entitled  to  the 
whole,  and  may  maintain  trover  for  them  against  a  purchaser 
In  good  faith.^ 

Possession  of  property,  with  a  claim  of  title  adverse  to  that 
of  the  true  owner,  is  sufficient  evidence  of  conversion.^  When 
goods  or  choses  in  action  have  been  pledged  to  secure  the 
payment  of  a  debt,  before  the  owner  can  reinvest  himself  with 
the  right  to  resume  possession  of  the  property,  he  must  pa}'' 
the  debt  or  at  least  make  a  sufficient  tender."  A  refusal  by 
the  possessor  to  deliver  goods  to  the  owner,  on  pretense  that 
they  belong  to  another,  is  evidence  of  a  conversion.'  If  a 
bailee  gives  a  sufficient  reason  for  not  delivering  the  goods  on 
a  demand,  his  refusal  so  to  deliver  will  not  amount  to  a  con- 
version.* A  common  carrier  is  liable  in  trover  for  losing- 
goods,'  but  a  mere  delay  in  delivery  by  a  carrier  is  not  a  con- 
version of  the  property.* 

Parties  may  be  sued  in  action  of  trover,  though  there  was 
no  joint  conversion  in  fact.  A  joint  conversion  may  be  im- 
plied in  law,  by  the  consent  of  a  partner  to  the  acts  of  his 
copartner.' 

Demaud — Whether  uecessary. — Proof  of  a  demand  and 

'  Bench  v.  Wallcer,  14  Mass.  500;  *  Underwood  v.   Latham,   1   Ind. 

Young  v.  Mason,  8  Pick.  551.  276;  Briggs  v.  R.   R.  Co.,  28  Barb. 

2  Bank  v.  Meadowcraft,  95  III.  124;  515. 
HaddixY.  Einstman,  14  Bradw.  443;  '  Bankx.  Leavitt,  17  Pick.  1;  Pas- 
Bank  V.  McCrea,  106  111.  281.  kard  v.  Getman,   4  Wend.  613;  R. 

^Maxwell  v.  Harrison,  8  Geo.  61;  R.  Co.  v.  Parks,  54  111.  294;  Ry.  Co. 

see  N.  T.  Co.  v.  Sellick,  52  111.  249.  v.  Gilvin,  81  111.    511;  Stone  v.  Ry. 

*  Henry  v.  Eddy,  34  III.  508;   Pic-  Co.,  9  Bradw.   48;  Ry.    Co.  v.  Mc- 

quet  V.  McKay,  2  Blackf.  465.  Comas,  33    111.   185;    M.   D.  Co.  v. 

«■  Coffin  V.   Anderson,    2    Blackf.  Synith,  76  III.  542;  Forbes  v.    R.  R. 

395;  iliuiger  v.   Hess,   28  Barb.  75;  Co.,  133  Mass.  154;  Dow  v.  Bank,  91 

Bud    V.    Pumphrey,      2    Md.    261;  U.  S.  618. 

Clark  V.  Hale,  34  Conn.  398;  Campen  « Briggs  v.  R.  R.  Co.,  28  Barb.  515. 

V.  Bemis,  35  111.  App.  37.  *  Bane  v.  Detrick,  52  III.  20. 
19 


290  TROVER. 

refusal  is  necessary,  in  trover,  when  the  defendant  comes  law- 
fully into  possession,  and  the  plaintiff  is  not  prepared  to  prove 
a  distinct  and  actual  conversion.  But  demand  and  refusal  are 
unnecessary,  if  the  taking  was  tortious,  or  if  an  actual  con- 
version was  shown.'  The  demand  and  refusal  where  neces- 
sary are  conclusive  evidence  of  conversion,  if  not  explained.'' 

Essentials  to  support  the  action. — In  trover,  the  plaintiff 
must  recover  on  the  strength  of  his  own  title,  without  regard 
to  the  weakness  of  that  of  his  adversary.  It  is  a  possessory 
action,  and  in  order  to  maintain  it,  the  plaintiff  must  show  in 
himself  either  a  general  or  special  property  in  the  thing 
alleged  to  have  been  converted.  It  is  essential  that  the 
plaintiff,  at  the  time  of  the  conversion,  should  not  have  only 
the  right  of  property  in  the  chattel,  but  also  the  right  to  the 
immediate  possession. 

His  right  to  possession  must  be  immediate,  absolute  and 
unconditional,  and  not  dependent  on  some  act  to  be  done  by 
him.  It  is  not  enough  that  he  has  a  mere  right  of  action, 
or  a  right  to  take  possession  at  some  future  day.'  The  plaint- 
iff must  prove  a  conversion  of  the  property  by  the  defend- 
ant at  a  time  when  the  right  of  possession  existed  in  the 
plaintiff;*  but  it  is  not  necessary  that  the  plaintiff's  interest 
in  the  goods  should  have  continued  until  the  commence- 
ment of  the  suit;  ^  and  to  show  a  conversion,  it  must  be  made  to 

^Hays  V.   Ins.  Co.,  125  111.  626;  vidson  v.  Waldron,  21111.120;  M<mt- 

Howitt  V.  Estelle,  92  111.  218;  1  Chit.  gomery  v.  Brush,  131  111.  513;  Blain  v. 

PI.  141;  Trans.  Co.  v.  ItaUory,  157  Foster,  33  111.  App.  297;  Poppers  v. 

111.  554;  Bankv.  Dunbar,  118  111.  625;  Peterson,  33  111,  App.  384;  Beckman 

Metcalfe  v,  Deckman,  43  111,  App,  v.  McKay,  14  C'al.  250;  Stephenson  v, 

284.  Little,  10  Midi.  433;  Grier  v.  Stout, 

2  Bank  v.  Strang,  28  Bradw.  375;  2  Bradw.  602;  Bricker  v.  Htighes,  4 

Bruner  v.  Dyball,  42  111.  34;  Roush  Ind.  146;  Trans.  Co.  v.  Mallory,  157 

V.  Washburn,    88    111.  215;  Race  \.  III.  554. 

Chandler,    15  Bradw.    532;    Sicart-  '^  Bertholf  x.  Quintan,  6S  III.   297; 

wout  V.  Evans,  37  111.  442;  Forth  v.  Presley  v,  Poxvers,  82  111.  125;  Owens 

Pursley,  82  111.    152;    Mulheisen  v,  v.  Weedman,  82  111,  409;  Davidson 

Lane,  82111.  Ill;  Alexander  V.  Run-  v.    Waldron,   31   111.   120;  Forth  y. 

die,  75  111.  85:  Bertholf  v.    Quintan,  Pursley,  82  111,    !•  2;  Hayes  v.  Ins. 

68  111.    297;  Hardy  v.  Keeler,  56  111.  Co.,  125  111,  626. 
152;  see  Trans.   Co.  \.  Mallory,  157  '  Barton   v.    Dunning,   6    Blackf, 

111.  554.  291;  Matteawan\.  Bentley,  13  Barb, 

^FrinkY.  Pratt,  130  111,  327;  Da-  641. 


TROVER.  291 

appear  that  the  defendant  has  had  actual  or  virtual  possession 
of  the  goods.' 

Judgment. — In  an  action  of  trover  by  the  bailee  of  a  chat- 
tel, or  one  havino:  a  special  property  therein,  against  the  real 
owner,  the  plaintiff  can  recover  his  special  property  only;  but 
if  the  action  is  against  a  stranger,  the  bailee  is  entitled  to  re- 
cover the  full  value  of  the  article,  and  he  holds  the  sura  recov- 
ered, less  the  amount  of  his  special  interest,  in  trust  for  the 
general  owner,  to  whom  he  is  responsible." 

The  judgment  for  the  plaintiff,  in  an  action  of  trover,  is  for 
the  full  value  of  the  property  at  the  time  of  the  conversion,* 
and  for  interest  from  that  time."  When  property  is  restored, 
not  depreciated  in  value,  it  goes  in  mitigation  of  damages.^ 

COMMENCEMENT    OF    THE    ACTION. 

An  action  of  trover  is  commenced,  like  most  other  actions 
at  law,  by  suing  out  a  summons,  or  capias;  and  in  certain  cases 
security  for  costs  is  required. 

The  declaration. — The  declaration  in  this  action  alleo-es 
that  the  plaintiff  Avas  possessed  of  certain  goods  (describing 
them),  as  of  his  own  property,  and  that  they  came  to  the  pos- 
session of  the  defendant  by  finding,  and  that  he  converted 
them  to  his  own  use.  The  conversion  is  the  gist  of  the  action. 
The  finding  is  not  traversable,'  and  it  would  probably  be  suf- 
ficient to  allege  generally  that  the  goods  came  to  the  hands  of 
the  defendant.' 

'  roT/Zor  V.  iJorra?/,  4  Blackf.  317;  Williams,   21    III.    118;  Winslow  \. 

Kelsey  v.  Griswold,  6  Barb.  486.  Norton,    29    Me.    419;  Kennedy  v. 

"^Benjamin  v.    Stremijle,    13    111.  WJuticell,    4    Pick.    iGiy;  Firing  \^ 

466;  Lyle  v.  Barker,  5  Binn.  457;  7n.  Blount,  20  Ala.    694;  3  Steph.  N.  P 

gersoll  v.  Van  Boklin,  7   Cow.   670;  2711;  Thrall  v.  Lathrop,  30  Vt.  307; 

White  X.  IFe&5,  ISConn.  302;  Cham-  Polkv.  Allen,  19  Mo.  467;  Funk  v. 

berlain  v.  Shaiv,  18  Pick.  278;  Ayer  Dillon,  21  Mo.  294. 

V.  Bartlett,   9  Pick.    156;  Byron  v.  ^  Kennedy  \.Wliiticell,4:'P\ckAm. 

Chapin,     11   Mass.    308;   Smith    v.  Poicers  v.  Bassford,  19  How.  (N.Y.) 

James,  7  Cow.  329.  309;   Yale  v.  Saunders,    16  Vt.  243: 

3  Keaggy  v.  Hite,  12  111.  99;   Bajik  Gibbs  v.  Chase,  10  Mass.  128;  Sjmrks 

V.  Leavitt,  17  Pick.    1;  Winslow  v.  \.  Purdy,    11  Mo.  219;  ^^lleeloekx. 

Norton,  29  Me.  419;  Tripp  v.  Grou-  Wheelright,   5  Mass.  104;  Smith  v. 

ner,  60  111.  474.  Dou-ning,  6  Ind.  374. 

*  Keaggy  v.  Hite,  12  111.  99;  Stur-  «  Chit.  PL  161. 

ges  Y.  Keith,   57   111.    451;   Otter  v.  '  Oliver's  Precedents,  467. 


292  TKOVER. 

In  actions  for  injuring,  taking  a'.vay  or  converting  goods,  it 
is  in  general  necessary  that  the  species,  the qumitity  ornumher, 
and  the  value  of  the  goods  should  be  alleged.  A  general  de- 
scription of  the  property  according  to  common  acceptation  is 
sufficient.'  Care  should  be  taken  not  to  include  in  the  dec- 
laration articles  of  property  which  can  not  be  recovered  in 
this  form  of  action,  lest  after  a  general  verdict  for  the  full 
amount  claimed,  and  judgment  thereon,  such  judgment  should 
be  reversed  on  error.^ 

If  the  plaintiff  desires  to  claim  for  special  damage,  that  is, 
damage  not  necessarily  consequent  to  the  conversion,  he  must 
charge  such  special  damage  in  his  declaration."  A  declaration 
in  trover  will  be  sustained,  although  no  amount  is  expressed  in 
the  ad  damnum  clause.*  But  in  Maryland  it  has  been  decided 
that  damages  must  be  claimed,  or  the  judgment  will  not  be 
supported  in  the  court  of  appeals."  Counts  in  case  and  trover 
may  be  joined  in  the  same  action.'  And  by  statute  in  Illinois, 
counts  in  trover  and  replevin  may  be  joined.' 

No.  159.     Oencral  form  of  declaration  in  trover. 

In  the Court. 

Term,  18—. 

State  of  Iixinois,  }   ^ 
County  of .      \  A.  B.,  plaintiff,  by  E.  F.,  his  attorney,  com- 

plains of  C.  D.,  defendant,  of  a  plea  of  trespass 
on  the  case:  For  that,  whereas,  the  plaintiff,  on,  etc.,  in  the  county  afore- 
said, was  lawfully  jiossessed,  as  of  his  own  property,  of  certain  goods  and 

chattels,  to-wit,  (here  describe  the  property,)  of  the  value  of dollars; 

and  being  so  possessed  thereof,  the  plaintiff  afterwards,  to  wit,  on  the  day 
aforesaid,  there  casually  lost  the  said  goods  and  chattels  out  of  his  posses- 

'  Taylor  v.    Wells,  2    Saund.   74,  see  Hargrave  v.  Penrod,  Breese  iOl; 

note;  Colehrooh  v.  Merrill,  46  N.  H.  Ryan  v.  Hurley,  119  Ind.  115. 

160:  Stinchfield  v.  Twaddle,  81  Me.  ^  Stirling  v.  Garrittee,  18  Md.  468. 

273;  Edgerly  v.  Emerson,  23  N.  H.  «  1  Chit.  PI.  181;  Ayerv.  Bartlett, 

555;    Ball    v.   Patterson,  1    Cranch  9  Pick.  156;    Horsley  v.   Branch,  1 

607;  Heddy  V.  Fuller,  IBlacki.  (Ind.)  Humph.  199;  Wilkinson  v.  Moseley, 

51;  Vanauken  v.  Wickham,  5  N.  J.  30  Ala.  562;  Hayes  v.  Life  Ins.  Co., 

L.'509.  125  111.  626. 

«  Clement  v.  Broum,  30  111.  43.  '  Rev.  Stat.  (1893),  1174;  Rev.  Stat. 

» Moonx.  Raphael,  2  Bing.  (N.  C.)  (1895),  1258;  2  Starr  &  Curtis  2015; 

310;  Davis  v.  Osivell,  7  C.  &  P.  804;  McGavock  v.   Chamberlain,  20  111. 

Barrelctt  v.  Bellgard,  71  111.  280.  219. 

*  Mattingly  v.  Darwill,  23  111.  618; 


TKOVER.  293 

sion,  and  the  same  afterwards,  to  wit,  on  the  same  day,  there  came  to  the 
possession  of  the  defendant  by  finding:  Yet  tlie  defendant,  well  knowing 
the  said  goods  and  chattels  to  be  the  property  of  the  plaintiff,  has  not  as 
yet  delivered  the  same,  or  any  or  either  of  them,  or  any  part  thereof,  to  the 
plaintiff,  although  often  thereto  requested,  but  has  hitherto  refused  so  to 
do,  and  afterwards,  to  wit,  on  the  same  day,  there  converted  and  disposed 
of  the  said  goods  and  chattels  to  his  own  use:  To  the  damage  of  the 
plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc. 

In  trespass  for  taking  "goods,  chattels  and  efects,''^  it  has 
been  held  the  plaintifiF  may  recover  the  value  ot  severed  S.x- 
tures,  but  not  so  if  for  taking  "  goods  and  chattels  "  onl}^^  If 
the  action  is  brought  for  a  note,  bill  of  exchange,  bond  or  other 
writing,  describe  it  by  its  date,  amount,  the  time  when  payable, 
parties,  etc.,  as  nearly  as  may  be.^  But  it  seems  it  is  not  nec- 
essary to  state  the  date  of  a  writing.^ 

In  trover  for  a  note,  an  omission  to  allege  its  value  can  only 
be  reached  by  special  demurrer.*  The  property  should  be  de- 
scribed to  be  of  some  value.* 

No.  160.    By  an  executor,  for  a  conversion  in  the  lifetime  of  the  testator. 

(Title  of  court,  etc,  as  in  last  precedent.)  A.  B.,  plaintiff,  executor  of  the 
last  will  and  testament  of  E.  F.,  deceased,  complains  of  C.  D.,  defendant,  of 
a  plea  of  trespass  on  the  case:  For  that  whereas  the  said  E.  F.  in  his  life- 
time, to  wit,  on,  etc.,  in,  etc.,  was  lawfully  possessed,  as  of  his  own  proi> 
erty,  of  divers  goods  and  chattels,   to  wit,  (describe  the  property,)  of  the 

value  of dollars;  and  being  so  possessed  thereof,  he,  the  said  E.  F.,  in 

his  lifetime,  afterwards,  to  wit,  on  the  day  aforesaid,  <;here  casually  lost  the 
said  goods  and  chattels  out  of  his  possession,  and  the  same  afterwards,  and 
in  the  lifetime  of  the  said  E.  F. ,  to  wit,  on  the  same  day  aforesaid,  there 
came  to  the  possession  of  the  defendant  by  finding:  Yet  the  defendant, 
w^ell  knowing  the  said  goods  and  chattels  to  be  the  property  of  the  said  E. 
F.,  in  his  lifetime,  and  of  right  to  belong  to  him,  and  to  the  plamtiff,  as 
executor  as  aforesaid,  after  the  decease  of  the  said  E.  F.,  did  not  deliver  the 
said  goods  and  chattels,  or  any  or  either  of  them,  or  any  part  thereof,  to  tlie 
said  E.  F.,  in  his  lifetime,  nor  has  the  defendant  as  yet  delivered  the  same, 

'2  Chit.  PI.  835,  n;   4  B.  &  A.  206.  Neilson,  15  N.  J.   L.  837;  Pierson  v. 

2  South.  211;  Taylor  v.  Morgan,  8  Toumsend,  2  Hill  (N.  Y.)  550. 
Watts.  333;  see  2  Chit.  PI.  835.  ^ Hixon  v.    Pixley,    15     Nev.  475; 

« 2  Chit.  PI.  835,  n.  but  see  2  Bouv.  L.  Diet.  606;  Connoss 

*Fry  V.  Baxter,   10  Mo.  302;  see  v.  Meir,  2   E.  D.  Smith  (N.  Y.)  314; 

Taylors.  Morgan,  3  Watts,  333;  Bis-  Richardsonv.  Hall,  21  Md.  399;  KuJu 

sell  V.  Drake,  19  Johns.  66;  Bank  v.  land  v.  Sedgwick,  17Cal.  123;  Byan 

V.  Hurley,  119  Ind.  115. 


294:  TKOVER. 

or  any  or  either  of  them,  or  any  part  thereof,  to  the  plaintiff,  executor  as 
aforesaid,  since  the  death  of  the  said  E.  F.  (althougli  often  requested  so  to 
do);  (*)  and  the  defendant  afterwards,  and  in  the  lifetime  of  the  said  E.  F., 
to  wit,  on  the  same  day  aforesaid,  there  converted  and  disposed  of  the  said 
goods  and  chattels  to  his  own  use:  To  the  damage  of  the  plaintiff,  as  execu- 
tor as  aforesaid,  of dollars,  and  therefore  he  brings  his  suit,  etc.     And 

the  plaintiff  brings  into  the  court  here  the  letters  testamentary  to  him 
gran  ted,  whereby  it  fully  appears  to  the  court  here  that  the  plaintiff  is  exec- 
utor of  the  said  last  wiU  and  testament  of  the  said  E.  F.,  deceased,  and  has 
the  execution  thereof,  etc. 

{If  the  suit  is  by  an  administrator,  commence  as  in  No.  35a,  va\te,page  SO, 
and  malceprofert  of  letters  as  in  same  form.) 

If  the  trover  was  in  the  lifetime  of  the  testator  or  intestate, 
but  the  conversion  after  his  death,  then  in  lieu  of  the  clause 
immediately  following  the  asterisk  in  the  above  form  insert 
the  words : 

And  the  defendant  afterwards,  and  after  the  death  of  the  said  E.  F., 
to  wit,  on,  etc.,  there  converted  and  disposed  of  the  said  goods  and  chattels 
to  his  own  use. 

If  the  action  is  brought  by  an  administrator  in  that  capac- 
ity, the  property  may  be  alleged  in  the  intestate,  whether 
the  conversion  was  before  or  after  his  death,  if  before  admin- 
istration granted;  but  if  any  one  takes  property  belonging  to 
the  estate  after  administration  granted,  the  administrator  may 
declare  on  his  own  possession.' 

If  the  trover  was  first  and  the  administration  afterwards, 
the  plaintiff  may  declare  specially,  or  lay  trover  after  the  ad- 
ministration; ^  for  an  executor  has  a  constructive  possession 
of  the  goods  from  the  time  of  the  testator's  death.^  The  prop- 
erty of  the  goods  draws  to  it  a  possession  in  law,  and  there- 
fore an  executor  may  declare  on  his  own  possession  "  as  exec- 
utor," though  in  fact  he  never  has  had  possession.*  In  trover 
by  an  administrator,  where  the  property  is  laid  in  the  intes- 
tate, evidence  is  not  admissible,  under  the  general  issue,  to 
dispute  the  plaintiff's  representative  character;  but  it  is  other- 
wise as  to  a  count  on  the  plaintiff's  possession.* 

1  Oliver's  Precedents  467.  *2  Chit.  PI.  840,  n. 

2  Comb.  304.  »2  Chit.  PI.  839;  1  Chit.  PI.  489. 
^  Smith  v.  Milles,  1  T.  R,  480;   01. 

Prec.  470. 


TKOYER.  295 

DEFENSES  IN  TROVER. 

For  pleas  in  abatement,  see  chapter  III,  "  Defenses  to  an 
Action,"  which,  with  very  little  variation,  can  be  made  appli- 
cable to  this  form  of  action. 

Pleas  in  bar. — In  trover  the  general  issue  is  "  not  guilty," 
and  it  is  not  usual  in  this  action  to  plead  any  other  plea,  ex- 
cept the  statute  of  limitations,  and  a  release.'  The  defendant 
may,  however,  plead  specially  anything  which,  admitting  the 
plaintiff  had  once  a  cause  of  action,  goes  to  discharge  it.  Thus 
a  release  may  be  pleaded,  as  before  observed;  accord  and  satis- 
faction; arbitrament  and  award;  and  a  former  recovery  for 
the  same  conversion.*  Fleas  attempting  to /i/6'?^//y  are  incon- 
sistent with  the  admission  of  a  conversion,  and  amount  to  the 
general  issue.* 

A  precedent  is  given  in  Chitty's  Pleading,  Yol.  3,  page  lOiO, 
of  a  plea  to  an  action  of  trover,  brought  by  an  administrator, 
that  the  grant  of  administration  was  void,  because  not  made 
by  the  proper  authority. 

The  plaintiff  is  compelled  to  proX^e  his  property,  general  or 
special,  in  the  goods;  possession,  actual  or  constructive;  and 
such  an  unlawful  disposition  of  them  by  the  defendant  as 
amounts  to  a  conversion.  Any  evidence  to  rebut  this  proof, 
in  any  particular,  may  be  given  under  the  general  issue.* 

A  plea  in  trover,  that  the  goods  have  been  consigned  by  the 
plaintiff  to  the  defendant  on  commission,  and  the  latter  had 
sold  them  pursuant  to  the  plaintiff's  order,  is  bad,  as  amount- 
ing to  the  general  issue.*  So  a  plea  to  an  action  of  trover  for 
a  buggy,  that  it  had  been  delivered  to  the  defendant  upon  a 
contract  of  bailment  for  hire,  and  that  it  had  been  destroj^ed 
by  accident,  without  the  fault  of  the  defendant,  is  bad  for  the 
same  reason.^ 

A   plea   in  trover  for  bank  notes,  that  the  defendant,   as 

'ICliit.   PI.  436;  see  Kennedy  v.  Biiggsv.  Brou-n,'3B.i]lS7;  Beckman 

Strong.  10  Jolins.  291.  v.  McKay,  14  Cal.  250;  see  Davidson 

^  1  Tidd's  Pr.  598;  Andrews'  Steph.  v.  Waldron,  31  111.  120. 

PI.  88,  note.  *  Kennedy  v.  Strong,  10  Johns.  288. 

3 Andrews' Steph.  PI.  88,  note;  but  ^Carter     v.    Tarns,   Dist.    Court, 

see  1  Chit.  PI.  435.  Phila.  1836. 

■•Andiews'    Steph.   PI.   88,     note; 


296  TROVEE. 

cashier  of  a  bank,  received  tiiem  from  the  holder  on  special 
deposit,  is  bad;  and  no  special  plea  in  bar  of  the  action  can  be 
ffood,  unless  it  confesses  and  avoids  the  conversion.'  The 
right  of  the  plaintiff  to  maintain  trover  is  put  in  issue  by  the 
plea  of  "  not  guilty;  "  ^  and  under  this  plea  the  defendant  may 
show  a  right  of  entry  for  rent  in  arrear,  under  which  he  en- 
tered, distrained  and  sold.^ 

In  this  action,  a  plea  of  property  in  a  third  person  is  bad." 
Evidence  of  such  matter  may  be  given  under  the  issue.*  The 
plea  of  "  not  guilty  "  puts  in  issue  nol  merely  the  conversion 
in  fact,  but  the  wrongful  conversion.^ 

In  trover,  upon  the  general  issue,  the  plaintiff  must  recover 
on  the  strength  of  his  own  title,  and  not  on  the  weakness  of 
that  of  his  adversary.''  It  seems  that  where  a  special  plea  is 
pleaded  which  only  amounts  to  the  general  issue,  the  exception 
may  be  taken  either  by  motion '  or  by  special  demurrer." 

Accounts  can  not  be  adjusted,  nor  a  set-off  be  allowed,  in  an 
action  of  trover."  It  has  been  held  that  a  defendant  can  plead 
to  an  action  of  trover,  in  justification,  that  he  had  a  special 
property  in  the  goods,  or  a  lien  thereon,"  but  the  weight  of 
authority  is  against  it. 

No,  161.    Pica  of  not  guilty — General  issue. 

In  the Court. 

Term,  18—. 

C.  D. ) 

ats.   V  Trover. 
A.  B.  )     And  the  defendant,  by  E.  F.,  his  attorney,  comes  and  defends 

1  Coffin  V.  Anderson,  4  Blackf.  395.  Stephenson  v.  Little,  10  Mich.  433; 

^Coffin    V.  Anderson,    4    Blackf.  Beckmanw.  McKay,  \^C3i\.  2^(i. 

896;  Hurst  v.Cooh,  19  Wend.  462.  ^Jackson  v.  Hobson,  A  Scam.  411. 

^  BriggsY.  Brown,  S  Will,  811 ;  see  *  Kennedy   v.   Strong,  10   Johns. 

GonkVs  PI.  319.  389;  Abramsv.  Pomeroy,  13  111.  133; 

*  Hurst  V.   Cook,   19  Wend.  469;  Klein  v.  Currier,  14:  111.   237;  Jack- 

Lhincan    v.    Speer,    11    Wend.    54;  son  v.  Hobson,  4:  Scam.  411;  Curtiss 

Harker  v.  Dement,  9  Gill.  7.  v.  Martin,  20  111.  557;  City  v.   War- 

^Schemerhom  y.VanValkenburg,  field,  25  III.  317;  Briggs  v.  Broum, 

11  Jolms.   529;  Duncan  v.  Speer,  11  3  Hill  (N,  Y.)  87;  Turner  v.  Waldo, 

Wend.  54;  see  Gould's  PI.  319.  40  Vt.  51;  Fenlason  v.  Rackcliff,  50 

e  Young  v.  Cooper,  6  Exch.    259;  Me.  362. 

Knyaston  v.  Crouch,  14  M.  W.  266.  ^^  Keaggy  v,  Hite,  13  111.  99;  see  2 

'  Bricker  v.    Hughes,  4  Ind.  146;  Cain's  Cas.  200. 

Davidson  v.    Waldron,  31  lU.  120;  "  Tidd's  N.  P.  330;  2  Bing.  755. 


TROVER.  297 

the  wrong  and  injury,  when,  etc.,  and  says  that  he  is  not  guilty  of  the  said 
supposed  gi-ievances  above  laid  to  his  charge,  or  any  or  either  of  them,  in 
manner  and  form  as  the  plaintiff  has  above  thereof  complained  against  him: 
And  of  this  the  defendant  puts  himself  upon  the  country,  etc. 

What  plaintiif  must  prove. — Under  the  plea  of  "not 
guilty"  the  plaintiff  must  prove:  (1)  Propert}-  in  himself, 
either  general  or  special,'  and  a  right  of  possession  at  the  time 
of  the  conversion.  (2)  A  conversion  of  the  thing  by  the 
defendant  to  his  own  use;  and  whether  the  defendant  originally 
came  to  the  possession  of  the  thing  by  right  or  by  wrong,  is  not 
material.  If  by  right,  a  demand  and  refusal  must  be  proved, 
unless  there  was  an  actual  conversion.^  (3)  The  value  of  the 
goods  at  the  time  of  the  conversion. 

Damages.— In  trover,  if  the  plaintiff  recover,  he  is  entitled 
to  the  full  value  of  the  property  converted,  with  interest  from 
the  time  of  the  conversion.^  The  measure  of  damages  in  trover 
for  a  note  is  the  amount  due  on  its  face,  unless  it  is  proved  to 
be  of  less  value,*  and  interest  from  its  maturity  to  the  time  of 
conversion,  and  interest  on  the  aggregate  from  that  time  to 
the  time  of  the  verdict.^ 

The  measure  of  damages  for  the  conversion  of  a  paper  of  no 
intrinsic  value  in  itself,  but  evidence  of  title  to  a  valuable 
right,  interest  or  property,  is  the  value  of  such  right  or  inter- 
est, with  interest  from  the  date  of  conversion  to  time  of  trial.^ 

For  pleas  of  the  statute  of  limitations,  release,  accord  and 
satisfaction,  etc.,  and  for  demurrers,  see  the  same  subjects  in 
"  Assumpsit "  and  "  Defenses  to  an  Action." 

^  Pyne    v.  Dor,  1   Term.    56;  Wil-  *  l7igalls  v.  Lord,  1  Cowen  24:0. 

braham  v.   Siwui,  2    Saund.  47,  a;  ^  St.  John  v.   OConnell,!   Porter 

Picquet  v.   McKay,   2  Blackf.   465;  (Ala.)  466;  see,  also,  jRo??i/(7  v.  iJom/g, 

Odiorne  v.    C alley,  2  N.  H.  66;  Da-  2  Rawle  241;  Bank  v.  Mas.  Hall,  63 

vidson  V.  Waldron,  31  111.  120.  Ga.  271;  but  see  Benjamin  v.  Bank, 

^Stevens  v.  Low,  2  Hill.  132;  see  63  Wis.  470. 

Bruner\.  Dyball,  42  111.  34.  ^Am.  Ex.  Co.  v.  Parsons,  44  111. 

^Keaggyv.  Hite,  12  111.  99;  Otter  312;  Hayes  v.  Lis.  Co.,  125  111.  626; 

V.  Williams,  21  111.  118;  Baldwin  v.  Olds  v.  Bd.   Trade,  33  111.  App.  445; 

BmdZey,  69  111.  32;  Sturgesv.  Keith,  Bank  v.  Strang,  28  111.  App,    825; 

57  111.  451;  Forbes  v.  R.  R.  Co.,  133  Sutherland  on  Dam.  520. 
Mass.  154;   2  Greenl.  Ev.,  Sec.  276, 
649. 


CHAPTER  IX. 

REPLEVIN. 

The  institution  of  the  action  of  replevin  is  ascribed  to  Glanvil, 
Chief  Justice  to  Henry  II.,  and  it  was  originally  the  peculiar 
and  exclusive  remedy  in  cases  of  wrongful  distress  for  rent, 
or  of  cattle  damage  feasant.  The  object  was  to  prevent  the 
beasts  of  the  plough,  cattle,  and  other  goods  of  the  tenant  in 
arrear  from  being  unjustly  or  excessively  distrained  by  the 
landlord,  lest,  as  Littleton  observes,  "  the  husbandry  of  the 
realm  and  men's  other  trades  might  thereby  be  overthrown  or 
hindered."  At  the  common  law,  a  distress  was  considered 
merely  as  a  pledge  or  security  for  the  rent,  or  damages,  or  for 
service  due  from  the  tenant  to  his  superior  lord,  and  a  means 
of  enforcing  payment  or  performance  thereof.  The  property 
could  not  be  sold  or  disposed  of  by  the  distrainor,  but  he  was 
compelled  to  hold  it  as  a  pledge  until  payment  or  other  satis- 
faction was  made.  The  law  was  altered  in  this  respect,  in 
England,  by  statute  2  William  and  Mary,  (A.  D.  1693)  which 
authorized  the  distrainor,  with  the  assistance  of  the  sheriff,  to 
have  the  distress  appraised  by  competent  appraisers,  and  sold 
for  the  highest  price  which  it  would  bring,  unless  reguhirly 
replevied  by  the  tenant  or  owner  within  five  days  after  seizure. 
There  were  two  ways  in  which  a  distress  could  be  replevied, 
one  according  to  the  common  law,  and  the  other  by  statute. 
The  common  law  allowed  the  owner  a  writ  of  replegiari  facias^ 
which  was  sued  out  of  the  chancery,  and  directed  to  the  sheriff 
of  the  county  in  which  the  distress  was  taken,  commanding 
him  to  redeliver  it  to  the  owner,  and  afterwards  to  do  justice 
in  respect  of  the  matter  in  dispute,  in  his  county  court. 

The  statute  of  Marlbridge,  52  Henry  III.  (A.  D.  1268),  pro- 
vided that  if  the  beasts  of  any  man  were  taken  and  AvrongfuUy 
withheld,  the  sheriff  should,  upon  complaint  made  to  him 
thereof,  deliver  them  to  the  owner  "  without  let  or  gainsaying 

(298) 


REPLEVIN.  299 

of  him  who  took  the  beasts."  The  owner  was  required  to  first 
give  security  (in  pursuance  of  the  statute  of  Westm,  2),  similar 
to  the  bond  required  by  statute  in  Illinois  and  other  states. 
The  original  writ  of  replegiari  facias  was  thus  dispensed  with; 
and  the  proceeding  upon  a  complaint  made  to  the  sherijff,  under 
the  statute,  was  called  a  proceeding  by  "  plaint."  The  statute 
of  Illinois  provides  that  the  proceedings  in  action  of  replevin 
shall  be  commenced  hj plaint,  and  the  word  has  the  same 
meaning  that  it  had  in  regard  to  proceedings  under  the  statute 
of  Marlbridge.  It  signifies  that  there  is  to  be  a  complaint 
•made  that  the  goods  were  wrongfully  taken,  or  wrongfully 
detained. 

The  statute  of  Illinois  requires  the  plaintiff,  or  some  one  in 
his  behalf,  to  make  oath  or  affirmation  that  he  is  the  owner  of 
the  property  about  to  be  replevied,  or  that  he  is  then  lawfully 
entitled  to  the  possession  thereof,  and  that  the  same  has  not 
been  taken  for  any  tax,  assessment  or  fine  levied  by  virtue  of 
any  law  of  the  state,  nor  seized  under  any  execution  or  attach- 
ment against  the  goods  and  chattels  of  such  plaintiff,  liable  to 
execution  or  attachment.*  It  has  been  usual  to  file  an  affidavit, 
and  to  allege  therein  that  the  goods  and  chattels  were  wrong- 
fully taken,  or  wrongfully  detained;  and  in  that  manner  the 
plaint  mentioned  in  the  statute  has  been  usually  made.^  The 
primary  purpose  of  the  action  is  to  recover  property  in  specie 
— not  its  value.^ 

Where  the  action  lies,  etc. — The  action  of  replevin  lies, 
for  the  recovery,  in  specie,  of  any  personal  chattel  which  has 
been  taken  and  detained  from  the  owner's  possession,  together 
with  damages  for  the  detention;  unless  the  taking  and  deten- 
tion can  be  justified  or  excused,  or  the  right  of  action  is  sus- 
pended or  discharged.* 

It  lies  at  common  law,  not  only  for  goods  distrained,  but  for 
goods  taken  and  unjustly  detained  for  any  other  cause  what- 
ever; except  that,  where  goods  are  taken  by  process  of  law, 
the  party  against  whom  the  process  issued  can  not  replevy 
them;  but  if  the  goods  of  a  stranger  are  taken,  he  may  replevy 

1  Rev.  Stat.  (1893),  1173;  Rev.  Stat.  «  Herdic  v.  Young,  55  Pa.  St.  176. 

(1895),  1256;  2  Starr  &  Curtis  2012.  '^2  Greenl.  Ev.,  Sec.  560;   Stanley 

5  Anderson  v.  Hapler,  34  111.  436.        v.  Eobinson,  14  111.  App.  480. 


300  KEPLEVIN. 

them  from  the  sheriff/  By  statute  in  most  of  the  states  of 
the  Union,  replevin  may  be  brought  whenever  goods  or  chat- 
tels have  been  wrongfully  distrained,  or  otherwise  wrongfully 
taken,  or  are  wrongfully  detained.  It  lies  by  a  bailee  entitled 
to  possession,  against  the  owner  of  chattels.^ 

If  a  chattel  is  sold  by  a  borrower  of  it,  the  owner  may  re- 
cover it  in  an  action  of  replevin  of  whomsoever  he  may  find 
in  possession  of  it.'  Where  a  purchase  of  goods  is  effected  by 
means  of  false  and  fraudulent  representations  on  the  part  of 
the  buyer,  the  seller  may  treat  the  sale,  though  on  credit,  as 
void,  and   maintain  replevin '  without  any  previous  demand." 

Where  a  person  operating  a  ferry  unlawfully  seizes  a  boat 
belono-ing  to  a  rival  ferry,  for  an  alleged  encroachment  upon 
his  franchise,  the  person  aggrieved  may  recover  his  boat  by  an 
action  of  replevin."  Where  a  person  had  agreed  to  make  three 
wao-ons  for  another,  within  a  limited  time,  it  was  held  that  it 
was  a  general  contract,  and  that  no  title  passed  on  the  comple- 
tion of  the  wagons  without  a  delivery,  and  therefore  an  ac- 
tion of  replevin  would  not  lie  to  recover  them.^ 

If  a  person  sells  goods  to  another,  and  delivers  them,  al- 
though the  purchaser  is  to  give  a  note  with  security  for  the 
goods  at  a  future  day,  a  sale  by  the  purchaser  w^ill  be  good, 
and  the  buyer  from  him  in  good  faith  will  hold  the  goods 
ao-ainst  the  first  vendor.*  Warehousemen  have  a  lien  on  prop- 
erty stored  with  them,  for  proper  charges,  and  may  retain 
possession  of  the  property  to  secure  payment  of  such  charges.' 

'  Svnmons  v,  Jenkins,  76  111.  479;  chett,  120  111.  573;  Faricell  v.  Linii, 

Samuel  v.  Agnew,  80  111.    553;  Cav-  59  111.  App.  245. 

ener  \.  SMnkle,89  lU.   161;    Keller  ^  Hall  y.   Gilmore,    40    Me.    578 

V.  Robinson,  153  111.  458;  Gipp.  on  Hancliett  v.  Sorg,  15  111.  App.  493 

Rep.  141;  CZarfcv.-S'fcnmer,  20  Johns.  Doane  v.  Lockimod,    115    111.   490 

470;  2  Greenl,  Ev.,  Sec.  560.  Fanvell  v.  Hancliett,  120  111.  573. 

2  Simpson  v.  Wrenn,  50  111.  223.  «  Gear  v.  Bullerdick,  34  111.  74. 

s Roland  v.  Gundy,  5  Ohio    202;  ">  Uj^dike  v.  Henry,  HIU.  S'^8;  Led- 

3IcNeill    V.    Arnold,    17    Ark.  154;  better  v,    Blessingame,  31   Ala.  495; 

Trudo  V.  Anderson,  10  Mich.  357.  Fettengill  v,  Merrill,  47    Me.     109; 

*Gray  v.    St.  John,  35    111.    222;  Haver  stick  v.  Fergus,  71  111.  105. 

Siveitzer  v.  Tracy,  76  111.  345;  Ex.  *  Brundage  v.  Camp,  21   111.  330. 

Co.  V.  Willsie,  79  111.  92;  R.  R.  Co.  » Low  v.   Martin,  18  111.   286;  see 

V.' PhiUips,    60    111.190;  Ames    v.  Henry  y.  Eddy,  UIW.  ^m. 
Moir,  130  111.  592;  Farwell  v.  Han- 


REPLETIISr.  301 

It  has  been  held  in  Indiana,  that  if  the  plaintiff  in  an  action 
of  replevin  is  nonsuited,  he  is  not  thereby  barred  from  bring- 
ing another  action,  the  statute  of  Westm.  2,  c.  2,  prohibiting 
a  second  replevin  after  a  nonsuit,  being  local  to  England,  and 
not  in  force  in  that  state."  In  Illinois  the  plaintiff  may  plead, 
to  a  suit  brought  upon  the  replevin  bond,  that  the  merits 
were  not  tried  in  the  replevin  suit."  Where  one  wrongfully 
sues  out  a  writ  of  replevin,  and  dismisses  the  suit,  he  illegally 
takes  and  assumes  ownership  of  the  property;  and  in  such  a 
case  the  owner  may  maintain  replevin  for  the  property,  and 
is  not  confined  to  the  remedy  on  the  bond.  The  first  replevin 
suit  does  not  change  the  ownership  of  the  property.* 

The  general  ownership  of  property  is  not  necessarily  in- 
volved or  determined  in  replevin,  but  the  right  of  possession 
is."  Eeplevin  lies  for  books  of  records,"  and  to  recover  the 
books  of  a  corporation  which  are  w^rongfully  detained,*  or  for 
private  letters.^  It  may  be  brought  to  recover  possession  of  a 
deed  which  is  withheld  from  a  person  in  whom  the  title  to  the 
land  thereby  conveyed  is  vested." 

In  general,  it  lies  for  any  tortious  or  unlawful  takino-  of  the 
property  of  another,  or  w^henever  trespass  de  honis  asportatis 
can  be  sustained.^  Replevin  lies  for  a  swarm  of  bees; '"  and  for 
the  increase  of  an  animal,  though  the  increase  was  after  the  tak- 
ing." It  will  not  lie  for  animal s/igrtc  natures,  and  unreclaimed.'" 
Money  in  a  box,  or  leather  made  into  shoes,  if  sufficiently 
identified,  may  no  doubt  be  recovered  in  replevin.  When 
property  has  undergone  an  alteration,  a  new  right  of  action 

1  Daggett   v.    Robins,   2    Blackf.  '  Eyer  v.  Higbee,  35  Barb.  503. 
415;  see  Walbr idge  v.  Shaw,  1  Cush,  ^King  v.  Gilson,  33  III.  348;  see 
560.  Wilson  v.  Rybolt,  17  Ind.  391;  Ewell 

2  Rev.  Stat.  (1893),  1174;  Rev.  Stat.  on  Fixtures  417. 

(1895),  1258;  Starr  &  Curtis  2018-  »  Wheeler  v.  McFarland,  10  Wend 

3  Brunerv.  Dyball,  43   111.  34.  332;  Allen  v.  Crary,  10  Wend.  349 
*  Warier  v.   Matthews,  18  111.  83;      Rogers    v.    Arnold,    13    Wend.    32 

McCoy  V.  Cadle,  4  Iowa  557;  Curd  Hopkins  v.  HopMns,  10  Johns.  369 

V.  Wnnder,   5  Ohio  92;  Cleaves  v.  Bufflngton  v.  Gerrish,  15  Mass.  156; 

Herbert,  61   111.   136;  R.  R,  Co.  v.  Stoughton  v.  Rappallo,   3  S.  &  R.' 

Shaw.  46  111.  App.  603.  562. 

5  Sawyer  v.  Baldivin,  11  Pick.  492;  '"  Morris  on  Replevin  54. 

Sudbury  v.  Steams,  21  Pick.  148.  "  Morris  on  Replevin. 

« Road  v.  Hixon,  5  Ind.  165.  '*  Morris  on  Replevin. 


302  REPLEVIN. 

arises  to  reclaim  it  by  replevin  in  that  shape  which  it  has 
assumed.  And  in  such  case  it  should  be  described  in  the 
writ  as  it  existed  at  the  time  of  the  commencement  of  the 
suit.^ 

A  person  may  maintain  replevin  for  boards  made  from  trees 
wrongfully  cut  on  his  land  and  taken  away.  And  it  is  a  gen- 
eral principle  that  the  owner  of  property  wrongfully  taken  may 
pursue  it  so  long  as  it  can  be  identified,  unless  it  is  annexed  to 
or  made  part  of  some  other  thing  which  is  the  principal — as 
lumber  put  into  the  house.^ 

If  property  or  choses  in  action  have  been  pledged  to  secure 
a  debt,  the  owner  must  pay,  or  at  least  tender,  the  amount 
due,  before  he  can  claim  the  right  to  resume  possession  of  the 
property,  or  bring  replevin  for  its  recovery.'  Where  property 
is  sold  and  delivered  to  the  purchaser,  a  part  of  the  price  be- 
ing paid  and  the  residue  to  be  paid  in  installments  the  vendor 
can  not  maintain  replevin  for  such  property,  upon  the  refusal 
of  the  purchaser  to  make  further  payment — on  the  ground 
that  the  property  is  not  such  as  he  bargained  for — without  re- 
funding the  money  already  paid.* 

The  question  of  the  validity  of  a  tax  can  not  be  considered 
in  an  action  of  replevin.^  Replevin  will  not  lie  in  a  state  court 
ao-ainst  a  United  States  marshal  who  has  seized  goods  under 
an  execution  from  a  United  States  court.' 

Who  may  maintain  tlie  action.— It  is  not  necessary,  in 
order  to  maintain  this  action,  that  the  plaintiff  should  be  the 
owner  of  the  property.  He  must,  however,  have  either  the 
o-eneral  property  in  the  goods  taken  or  detain(;d,  or  a  special 
property  therein.^     And   it  makes  no  difference  whether  the 

^Broivn  v.  Sax,  7  Cow.  95;  Betts  *  Hamilton  v.  3Ifg.  Co.,  54111.  370. 

V.  Lee,  5  Johns.   348;    Wingate  v.  *  R.   R.  Co.   \.  Andrews,   53    111. 

Smith,  20  Maine  287.  177;  McClaughrey    v.  Cratzenherg, 

^  Davis   V.    Easley,    13    III,     192;  39  111.   117;  Bilbo  v.  Henderson,  21 

Cromelian  v.  Brink,  29   Penn.  552;  Iowa 56;  Rev.  Stat.  (1893),  1172;  Rev. 

Warren  v.  Leland,  2  Barb.  613;   So-  Stat.  (1895),  1256;  2  Starr  &  Curtis, 

cietyv.  Fleming,  11  Iowa  533;  An-  2012. 

derson  v.  Hapler,  34  111.  436.  «  Covell  v.  Heyman,  111  U.  S.  176; 

^  Henry  V.   Eddy,    34    111.    508;  2  Freeman  y.  Howe,  24  B.ow.  450. 

Greenl.  Ev. ,  Sec.  648;  Chickering  v.  '  Boughton   v.    Bi-uee,  20  Wend. 

Raymond,  15  111.  363.  234;  Shearick  v.  Huber,  6  Binn.   3; 


EEPLEVIN.  303 

claimant's  property  in  the  goods  is  absolute  or  qualified/  or 
whether  he  has  ever  had  the  possession  or  not,*  if  he  has 
the  right  of  possession.  He  must,  however,  have  at  least  a 
special  property  in  the  goods  claimed/  Thus  a  mere  custo- 
dian,* or  receiptor  to  an  officer  or  any  other  bailee  for  safe 
keeping,*  or  a  mere  servant,  who  has  charge  of  goods  as  such 
only,'  can  not  maintain  replevin. 

The  plaintiff  must  have  had  a  right  to  the  possession  of  the 
property  at  the  time  of  the  taking  or  detention.'  If  he  has 
not  the  immediate  right  of  possession,  the  action  can  not  be 
supported,'  but  he  must  proceed  by  an  action  on  the  case." 
One  joint  owner  of  a  chattel  can  not  maintain  replevin  against 
the  other.'"  A  father,  as  the  natural  guardian  of  his  children, 
where  they  have  no  other  guardian,  may  maintain  the  action 
for  their  property." 

Where  a  minor  makes  an  exchange  of  a  horse  belono-ino-  to 
his  father,  and  the  father  apparently  acquiesces  in  the  bargain 
for  a  considerable  time  after  it  has  been  made,  he  can  not  re- 
cover the  horse  his  son  has  exchanged  in  action  of  replevin.'* 
If  a  person  seeks  to  maintain  an  action  of  replevin  for  a  steam 

Young  v.   Kimball,   23  Penn.   193;  ''Gates  v.    Gates,  15    Mass.   310; 

Broadwater  v.  Darin,  10  Mo.  277;  Collins  v.  Evans,  15  Pick.  63;   Wal- 

1  Chit.  PI.  163.  pole  v.  Smith,  4  Blackf.    304;  Pratt 

^Collins  V.  Evans,    15    Pick.    63;  v.  Parhman,  24  Pick. 42;  1  Chit.  P]. 

Rogers    v.   Arnold,    12  Wend.    30;  163;  Broadwater  v.  Darine,  10  Mo. 

Whitewell    v.    Wells,    24  Pick.  25;  277;  Pilkingtonv.  Trigg,  28  Mo.  95; 

Gillett  V.  Treganza,  6  V/is.  343;  Les-  School  v.  Lord,  44  Maine  374;  Ator 

ter  V.  McDonald,  18  Penn.   St.   91;  v.  Rix,  21  III.  App.  309. 
Gartside  v.  Nixon,  43  Mo.  138.  » j  qjjJ^     pj     ^gg^   ^.  -[Yj^^^i^y,  ^ 

*  Whitewell  V.  Wells,  24  Pick.  25;  Tram,  3  Pick.  255;  Collins  v.  Evans, 
Johnson  v.  Hiint,  11  Wend.  137;  15  Pick.  63;  Ingraham  v.  Martin, 
Williams  v.   West,  2  Ohio  82;  Bos-  3  Shepley  373.      " 

tick  V.  Brittain,  25  Ark.  482.  9  1  Chit.  PI.  263,  a. 

3  5  Dane's   Dig.  515;    Pattison  v.  lo  3IcElderry  v.   Flanaghan,  1  H. 

Adams,  7  Hill,  126;  Haller  v.  Cole-  &    G.   308;    Prentice    v.    Ladd,   12 

son,  23  lU.  App.  324.  Conn.  331;  Wills  v.  Ncyes,  12  Pick. 

*  Harris  v.  Smith,  3  S.  &  R.  20;  324;  Belcher  v.  Van  Dusen,  37  111. 
Perleyy.  Foster,  9  Mass.  109;  Harris  281;  Gaarv.  Hard,  92111.  315;  Stan- 
V.  Mcintosh,  1  Johns.  380.  ley  v.    Robinson,   14   Bradw.    480; 

'  Waterman  v.  Robinson,  5  Mass.  "  Smith  v.  Williamson,  1  Hex.  & 

303;    Simpson    v.    McFarland,    18  J,   147. 

Pick.  427.  "  Hall  v.  Harper,  17  111.  82. 

">  HarHs  v.  Smith,  3  S.  &  R.  20. 


304:  REPLEVIN. 

saw-mill  building  situated  upon  the  land  of  another,'  with  all 
the  machinery,  etc.,  belonging  to  the  same,  he  should  at  least 
aver  in  his  plaint  and  declaration  that  the  property  in  question 
is  personal  estate.  Replevin  does  not  lie  for  house  perma- 
nently attached  to  land.^ 

The  owner  of  land  may  bring  replevin  for  chattels  severed 
from  it  where  there  was  no  adverse  possession,  but  not  if  the 
land  is  held  adversely.  He  can  not  assert  his  title  to  the  land 
in  that  manner.'  Consistently  with  this  rule,  a  landlord  may 
bring  replevin  for  chattels  wrongfully  severed  from  the  free- 
hold bv  a  tenant,  as  the  title  to  the  land  is  not  thereby  drawn 
in  question.* 

Replevin  can  only  be  supported  for  taking  personal  chattels, 
and  not  for  taking  things  attached  to  the  freehold,  and  which 
are  in  law  considered  fixtures,  and  can  not  be  delivered  to  tbe 
plaintiff  or  to  the  defendant  upon  a  writ  of  retorno  hahendo.^ 
Hence  it  does  not  lie  for  trees  growing;  but  if  they  are  cut 
down  by  a  stranger,  who  converts  them  into  posts  and  rails, 
the  action  may  be  maintained.^ 

Where  the  property  is  left  with  a  person  who  has  advanced 
money  upon  it,  and  is  to  keep  it  until  he  shall  be  reimbursed, 
he  may  replevy  it  from  one  who  attaches  it  as  a  creditor  of  the 
pledgor;  ^  and  unless  it  is  made  to  appear  that  the  attaching 
partv  was  really  a  creditor  he  can  not  complain  that  it  was  a 
design  to  protect  the  property  of  the  debtor.  The  writ  of  at- 
tachment does  not  of  itself  show  that  the  party  in  it  was  debtor 
of  the  plaintiff.  It  only  shows  that  the  officer  Avho  made  the 
attachment  acted  in  behalf  of  an  assumed  creditor.^ 

^  Chatterton  v.  Saul,  16  111.  149;  ^DeMott  v.  Hagerman,  8  Cowen 

soe  Ogden  v.  Stock,  34  111.  522:  Dorr  220;  Cresson  v.  Stout,  17  Johns.  116; 

V.  Dudderar,   88  111.  107.  see  Anderson  v.  Hapler,  34  111.  436. 

2  Salter  v.  Sample,  71  111.  430.  « Johnson  v.  Hunt,  11  Wend.  137; 

^Anderson  v.  Hapler,  34  111.  436;  1  Chit.  PI.  146;  Anderson  v.  Haj)ler, 

Davis  V.  Easley,  13111.  192;  1  Smith's  34  III.  436;  Davis  v.   Easley,  13  111. 

Lead.  Cas.  485.  192;  Robertson  v.  Jones,  71  111.  405. 

*Langdon  v.   Paul,    22    Vt.   205;  '  Cttrr/er  v.  Ford,  26  111.  488. 

Sands V.  Pfeiffer,  10  Cal.  258:  San-  ^Currier  v.  Ford,  26  111.  488;  Bas- 

ders  V.  Reed,  12  N.  H.  558;  A7ider-  sett  v.  Armstrong,  6  Mich.  397. 
son  V.  Hapler,  34  111.  436;   Ogden  v. 
Stock,  34  lU.  522. 


EEPLEVIN.  305 

A  person  wlio  consents  that  grain  left  in  a  \varehoiise  may 
b(3  put  in  bulk  with  other  grain,  with  the  understanding  that 
a  like  quantity  and  quality  shall  be  delivered  to  him  on  request, 
can  not  maintain  replevin  for  the  grain.  If  the  intermixture 
of  grain  was  without  the  consent  of  the  bailor,  or  was  the 
wrongful  act  of  the  warehouseman,  it  might  be  otherwise.' 

If  there  is  confusion  of  goods  by  reason  of  intermixture  (by 
consent  of  the  owners),  so  that  each  owner  can  not  distinguish 
his  property,  each  will  have  a  proportionate  interest  in  the 
whole.  Keplevin  lies  for  specific  property,  capable  of  identi- 
fication and  an  actual  return,  not  for  an  undivided  interest  or 
share.' 

If  it  was  understood  and  intended  thai  the  title  to  the  prop- 
erty should  pass  without  any  further  action  of  the  parties  pur- 
chasing and  selling,  then  the  purchaser  may  maintain  replevin, 
whether  the  goods  had  been  delivered  to  him  or  not.^  But 
where  a  contract  was  made  to  sell  so  many  bushels  of  corn, 
more  or  less,  to  be  delivered  within  a  specified  time,  and  a 
small  sum  was  paid  to  bind  the  bargain,  it  was  held  that  the 
buyer  had  no  right  to  replevy  corn  in  the  possession  of  the 
seller,  on  the  failure  of  the  latter  to  perform  the  contract. 
The  only  remedy  of  the  buyer  was  an  action  on  the  contract.* 

A  mortgagee,  or  assignee  of  a  chattel  mortgage,"  upon  con- 
dition broken,  may  maintain  replevin.  But  if  it  is  agreed  that 
the  mortgagor  shall  retain  possession  for  a  stipulated  time, 
the  mortgagee  can  not  maintain  the  action  until  such  time  has 
expired.®  One  who  has  bought  and  receipted  for  goods,  at  a 
sheriff's  sale,  is  the  owner  of  such  goods,  and  may  replevin 
them.^ 

An  officer  may  maintain  replevin  against  a  custodian  who 
refuses  to  deliver  goods  entrusted  to  him  by  the  officer,  and  the 

^Low  V.  Martin,  18  111.  286;    see  heter   v.   Blessingame,  31    Ala.  495; 

Warner  V.  Cushman,  31111.883.  Bradley    v.    Michael,    1    Ind.    551; 

'^  Low  V.  Martin,  18  111.  286;  Hart  Winslowv,  Leonard,  24  Penn.  14. 
V.  Fitzgerald,  2  Mass.   511;  Stanley         ^Barbour  v.    White,  S7    111.    164. 
V.  Robinson,  14  111.  App.  480.  *  Ingraham  v.  Martin,  3  Shepley 

^Rhea  v.  Riner,  21  111.  526.     ,  373. 

*  Low  V.  Freeman,  12  111.  467;  see         '  Freeman  v.   Morse,  20  111.   429; 

Updike  V.  Henry,  14  111.  378;  Led-  Hazzard  v.  Burton,  4  Harr.  62. 
20 


306  KEPLEVIN. 

custodian  can  not  set  up  title  in  himself.'  In  Illinois,  and  some 
other  states,  a  married  woman  may  sue  alone,  in  replevin,  to 
recover  her  separate  property,^  even  against  her  husband.^ 

Who  may  be  made  defendant. — In  general,  any  one  in  pos- 
session of  goods  may  be  made  defendant.  If  goods  are  taken 
by  one  person  at  the  request  of  another,  the  action  may  be 
maintained  against  either  or  both."  "Where  goods  levied  on 
under  execution  are  replevied  the  officer  is  the  proper  person 
to  be  made  defendant;  the  plaintiffs  in  execution  are  not 
necessary  or  proper  parties  to  the  suit." 

Demand — When  necessary. — If  the  possession  of  the  prop- 
erty claimed  has  been  obtained  by  delivery,  or  otherwise  law- 
fully, a  demand  and  refusal  are  necessary  before  bringing  suit.* 
To  maintain  an  action  of  replevin  by  the  mortgagee,  for  the 
return  of  property  taken  from  the  mortgagor  on  execution, 
there  must  be  proof  of  demand  and  refusal  to  return  the  prop- 
erty, unless  there  is  a  waiver  of  the  demand,  or  proof  that  it 
would  have  been  unavailing.^  The  demand  may  be  made  by 
one  who  stands  in  loco  parentis  to  the  claimant,* 

Where  the  possession  of  goods  has  been  wrongfully  obtained, 
no  demand  is  necessary.® 

COMMENCEMENT   OF   THE    ACTION. 

Tenue. — Section  3  of  the  statute  provides  that  "  the  action 
may  be  brought  in  any  county  in  which  the  goods  and  chat- 

>  Farwell  v.  Hanchett,  120  111.  573;  ^ Blatchford  v.  Boyden,  123  HI.  657. 

Oswald  V.  Hutchinson,  26  111.  App.  ^  Ingalls  v.   Buckley,  13  111.    315; 

273.  Hudson  v.  Maze,  3  Scam.  579:  Clark 

^  Dean  Y.  Bailey,  50  IWASl;  Chap-  v.  Lewis,   35  111.    411;  Hamilton  v. 

man  v.  Allen,  15  Texas  278.  Mfg.  Co.,  54  111.   370;  Broughton  v. 

3  Emerson  v,  Clayton,  32  111.  493;  Bruce,  20  Wend.  234;  see  Ingalls  v. 
Deanv.  Bailey,  50  111.  481;  see  CoZe  Buckley,  15  111.  224;  ii.  R.  Co.  v. 
V.  Biper,  44  111.  58;  Wortman  v.  Noe,  77  111.  513;  Holliday  v.  Barth, 
Price,  47  111.  22;  Dyer  v.  Keefer,  51  11  Bradw.  206. 

111.  525;  Pike  v.  Baker,  53  111.  163.  '  Keller  v.  Robinson,  153  111.  458.  . 

4  Hall  V.    White,   106  Mass.   600;  «  Neivman  v.  Bennett,  23  111.  427. 
Richardson  v.    Reed,   4    Gray  441;  ^  Woodicard  v .  Woodward,  14:  HI. 
Gilb.    Rep.    162;  Britt  v.   Arjlett,   6  466;  Fo//e<f  v.  E'dimrr^s,  30  III.  App. 
Eng.  (/\rk.)475;  see  Dobbins  v.  Han-  386;    Clarke  v.  Leims,   35  111.    417; 
chett,  20  Bradw.  396.  Butters  v.   Haughwout,   42  111.  18; 


KEPLEVIN.  307 

tels  or  any  part  of  them,  are,  or  in  which  the  defendant,  or,  if 
several  defendants,  either  of  them  resides  or  may  be  found." ' 

Section  4:  of  the  statute  provides  that  "  the  person  bring- 
ing such  action  shall,  before  the  writ  issues,  file  with  the  clerk 
of  the  court  in  which  the  action  is  brought,  an  affidavit  show- 
ing that  the  plaintiff  in  such  action  is  the  owner  of  the  prop- 
erty described  in  the  writ,  and  about  to  be  replevied,  or  that 
he  is  then  lawfully  entitled  to  the  possession  thereof,  and  that 
the  property  is  wrongfully  detained  by  the  defendant;  and 
that  the  same  has  not  been  taken  for  any  tax,  assessment 
or  fine  levied  b}^  virtue  of  any  law  of  the  state,  nor  seized  un- 
der any  execution  or  attachment  against  the  goods  and  chattels 
of  such  plaintiff,  liable  to  execution  or  attachment,  nor  held 
by  virtue  of  any  writ  of  replevin,  against  such  plaintiff."  ' 

It  is  usual  to  file  an  affidavit  in  writing.  The  affidavit  may 
be  in  the  following  form  : 

No.  IGla.    Affidavit  in  replevin. 

State  of  Illinois,    ) 

County  of ,      \     '     A.  B.,  of,    etc.,    on  oath  states,  that  he  is  the 

owner  of  (or  lawfully  entitled  to  the  possession 
of)  the  following  described  goods  and  chattels,  to  wit:  {Here  describe  the 
property,)  of  the  value  of dollars;  and  that  the  said  property  is  wrong- 
fully detained  by  one  C.  D.  of,  etc. ;  and  that  the  same  has  not  been  taken 
for  any  tax,  assessment  or  fine  levied  by  virtue  of  any  law  of  this  state, 
nor  seized  under  any  execution  or  attachment  against  the  goods  and  chat- 
tels of  him,  the  said  A.  B.,  liable  to  execution  or  attachment,  nor  held  by 
vktue  of  any  writ  of  replevin  against  him,  the  said  A.  B. 

A.  B. 

Subscribed  and  sworn  to,  etc. 

There  is  no  necessity  of  any  other  averments  in  the  affidavit 
than  those  prescribed  by  the  statute.' 
But  such  as  are  prescribed  must  be  made  in  full  a,nd  positive 

Tuttle  V.  Robinson,  78111.332;  Yates  (1893),  1172;  Rev.  Stat.  (1895),  1256; 

v.  Smith,  11  Bradw.  459;  Dobbins  v.  see  Anderso7i  v.  Hapler,  34  111.  436; 

Hanchett,  20  Bradw.  396;  Cummins  Whisler  v.  Roberts,  19  111.  274;  Vaii 

v.  Holmes,  109  111.  15;    Goldschmidt  Namee  v.  Bradley,  69  111.  299;  Sea- 

v.  Berry,  18  III.  App.  276.  briry  v.  Ross,  69  111.  533;  Simmonsv. 

1  2  Starr  &  Curtis,  An.  Stat.  2011;  Jenkins,  76  111.  479;  Burton  v.  Cur- 
Rev.    Stat.    (1893),   1772;    Rev.  Stat.  g/ea,  40  111.  320. 

(1895),  1256;  see  Whisler  v.  Roberts,  *  Whisler  v.    Roberts,  19  111.  274; 

19  111.  274.  People  v.  Core,  85  111.  248. 

2  2  Starr  &  Curtis,  2012;  Rev.  Stat. 


308  REPLEVIN. 

terms,  when  made  by  the  plaintiff.'  "  "When  the  affidavit  is 
made  by  any  person  on  behalf  of  the  plaintiff,  the  same  may 
be  made  upon  the  information  and  belief  of  the  affiant." " 
The  statute  does  not  require  the  plaintiff  in  replevin  to  state 
the  value  of  the  property  to  be  replevied.  The  sheriff  must 
ascertain  and  fix  the  value." 

The  plaintiff  is  estopped  to  deny  the  value  fixed  by  him  in 
his  affidavit,  though  the  defendant  is  not  bound  thereby.*  An 
affidavit  in  replevin  may  be  amended; "  but  application  to 
amend  should  be  made  in  apt  time.  A  motion  to  dismiss  for 
want  of  sufficient  affidavit  comes  too  late  after  a  party  has  ap- 
peared and  pleaded."  Such  application  to  amend  an  affidavit 
is  addressed  to  the  discretion  of  the  court.' 

Bond. — Section  10  of  the  statute  provides  that  "  before  the 
execution  of  an}'-  writ  of  replevin,  the  plaintiff  or  some  one  else 
on  his  behalf  shall  give  to  the  sheriff,  constable  or  other  officer, 
bond  with  sufficient  security  in  double  the  value  of  the  prop- 
erty about  to  be  replevied,  conditioned  that  he  will  prosecute 
such  suit  to  effect  and  without  delay,  and  make  return  of  the 
property,  if  return  thereof  shall  be  awarded,  and  save  and 
keep  harmless  such  sheriff,  constable  or  other  officer  (as  the 
case  may  be)  in  replevying  such  property."  ' 

The  bond  should  run  to  the  officer  serving  the  writ,'  and  a 
bond  which  fails  to  show  the  name  of  the  defendant  is  a  nul- 
litv.^°  A  replevin  bond,  not  under  seal,  is  valid  as  a  contract 
of  indemnity .'' 

J  Campbell  v.  Head,  13  111.   123;  Shales,  20  Wend.  673;  Bates  y.Will- 

WiUnir  v.  Flood,  16  Mich.  40;  Frink  iams,  43  111.  494;  Troutman  v.  Hill, 

V.  Flanagan,  1  Gilm.  35;  McClaugh-  5  Bradw.  396. 

ryv.  Cratzenherg,  39  111.117.  ^  Frink  v.  Flanagan,   1  Gilm.  35; 

2  2  Starr  &  Curtis  2012;  Rev.  Stat.  Fryatt  v.  Sidlivan,  5  Hill  119. 
(1893)  1173;  Rev.    Stat.    (1895)  1257;  '  2  Starr  &  Curtis,  2016;  Rev.  Stat. 
CoZbom  V.  Barton,  14  Bradw.  449.  (1893)    1174;    Rev.    Stat.  (1895)  1258; 

3  Peoj^le  V.  Core,  85  111.  248.  McClaughry  v.  Cratzenherg,   39  111. 
*  Wells  on  Rep.,   Sees.   569,  660;      117;  Yott  v.  People,  91  111.  11. 

Ice  Co.  V.   Webster,  125  U.  S.  426;  «  Wolfe  v.  McClure,  79    111.    564; 
O'Donnell  v.  Colby,  55  111.  App.  112.  Fahnstock  v.  Gilham,  77  111.  637. 
B  Campbell  v.  Head,   13  111.    122;          ^  Speerv.  Skinner,  35  111.  282. 
Frink  v.  Flanagan,  1  Gilm.  35;  Cut-  '»  Arter  v.  People,  54  111.  228;  Mat- 
ter V.  Rathbone,  1  Hill  204;  Hawley  v.  thews  v.  Storms,  72  111.  316. 
Bates,   19  Wend.    632;   Whaling  v.  "  Edwin  v.  Cox,  61  111.  App.  567. 


REPLEVIN.  309 


Term,  18—, 


No.  163.     Declaration  in  replevin. 
In  the Court. 

State  of  Illinois,  ) 

County  of ,     )  set.     A.  B.,  plaintiff,  by  E.  F.,  his  attorney,  complains 

of  C.  D.,  defendant,  of  a  plea  wherefore  he  took  the  goods  and  chattels  of 
the  plaintiff,  and  unjustly  detained  the  same,  until,  etc.:  For  that  the  de- 
fendant, on  the day  of ,  in  the  year  18 — .  in  the  county  aforesaid, 

took  the  goods  and  chattels,   to  wit,  (here  describe  the  property)  of    the 

plaintiff,  of  the   value  of  dollars,  and  unjustly   detained  the  same, 

until,  etc. 

{Second  count,  for  detaining,  etc.)  And  also  wherefore  the  defendant 
unjustly  detained  the  goods  and  chattels  of  the  plaintiff,  until,  etc. :  For  that 
the  defendant,  on  the day  of ,  in  the  year  18 — ,  in  the  county  afore- 
said, other  the  goods  and  chattels  of  the  plaintiff,  to  wit,  {here  describe  the 
property)  of  the  value  of dollars,  unjustly  detained,  until,  etc. 

Wherefore  the  plaintiff  says  that  he  is  injured,  and  has  sustained 
damage  to  the  amount  of dollars,  and  therefore  he  brings  his  suit,  etc. 

In  Illinois,  if  the  goods  described  in  the  writ  of  replevin  can 
not  be  found  by  the  officer,  the  plaintiff  may  declare  in  trover, 
and  if  there  is  personal  service,  recover  the  value  of  the  goods, 
with  damages  for  the  wrongful  taking  or  detention,  and  costs.' 
If  a  part  only  is  found,  a  count  in  trover  may  be  joined  for 
the  residue,*  which  count  may  be  as  follows : 

No.  163.    Count  in  trover,  to  be  inserted  ivlienpart  of  goods  could  not  be 

replevied. 

And  also  for  that  whereas  the  plaintiff,  on  the  day  last  aforesaid,  in  the 
county  aforesaid,  was  lawfully  possessed,  as  of  his  own  property,  of  certain 
other  goods  and  chattels,  to  wit,  {here  describe  the  property,)  of  the  value  of 

doUai-s;   and  being  so  possessed  thereof,  the  plaintiff,  afterwards,  to 

wit,  on  the  same  day,  there  casually  lost  the  last  mentioned  goods  and 
chattels  out  of  his  possession,  and  the  same  afterwards,  to  wit,  on  the  same 
day,  there  came  to  the  possession  of  the  defendant  by  finding:  Yet  the 
defendant,  well  knowing  the  last-mentioned  goods  and  chattels  to  be  the 
property  of  the  plaintiff  has  not  as  yet  delivered  the  same,  or  any  or  either 
of  them,  or  any  part  thereof,  to  the  plaintiff,  though  often  thereto  requested, 
but  has  hitherto  refused  so  to  do,  and  afterwards,  to  wit,  on  the  same  day, 
there  converted  and  disposed  of  the  last-mentioned  goods  and  chattels  to 
his  own  use. 

Care  should  be  taken  to  describe  the  property  correctly,  lest 

'  3  Starr  &  Curtis,  2015;  Rev.  Stat.  '^  Yott  v.  People.  91  111.  11;  McGav- 

(1893),  1174;  Rev.  Stat.  (1895),  1258.  ack  v.  Chamberlain,  20  111.  219. 


310  EEPLEVIN. 

there  should  be  a  variance  between  the  proof  and  the  declara- 
tion.' 

DEFENSES    TO    THE    ACTION. 

For  pleas  in  abatement,  etc.,  see  the  precedents  in  Defenses 
to  an  Action,  chapter  III. 

Pleas  iu  bar. — Properly  speaking,  there  is  no  general  issue 
in  the  action  of  replevin;  ^  because  there  is  no  plea  which  alone 
puts  in  issue  the  whole  of  the  declaration. 


Term,  18— 


No.  164.    Plea  of  non  cepit. 
In  the Court. 

C.  D.    ) 
ats.     [   Eeplevin. 

A.  B.  )  And  the  defendant,  by  G.  H.,  his  attorney,  comes  and  defends 
the  wrong  and  mjury,  when,  etc.,  and  says  that  he  did  not  take  the  goods 
and  chattels  in  the  said  declaration  mentioned,  or  any  or  either  of  them, 
or  any  part  thereof,  in  manner  and  form  as  the  plaintitf  has  above  thereof 
complained  against  him;  And  of  this  the  defendant  puts  himself  upon  the 
country,  etc. 

The  plea  of  non  cepit,  at  common  law,  where  the  gist  of  the 
action  consists  in  the  tortious  taking  of  the  plaintiff's  goods  by 
the  defendant,  is  said  to  be  the  general  issue  in  replevin.'  It 
merely  puts  in  issue  the  taking  of  the  goods,  and  admits  the 
property  to  be  in  the  plaintiff;  and  if  the  defendant  succeeds 
thereon,  he  will  not  be  entitled  to  a  return  of  the  goods."  A 
finding  for  him,  on  that  issue,  merely  protects  him  from 
damages. 

To  entitle  the  defendant  to  a  return  of  the  goods  replevied 
he  must  contest  the  plaintiff's  right  to  the  property;  and  this 
he  may  do  by  pleading  specially  property  in  himself,  or  in  a 

1  Taylor  v.  Riddle,  35  111.  567.  Greenl.  Ev.  562;  Galusha  v.  Butter- 

^  Dole    V.     Kennedy,    38  111.  283;  field,    2    Scam.  227;    Anderson    v. 

Anderson  v.    Talcott,  1  Gilm.   365;  Talcott,  1  Gilm.  365;  Vosev.  Hart,  12 

Amos  V.  Stnnott,  4  Scam.  440.  111.  378;  Bourke  v.  Riggs,  38  111.  320; 

3  2  Greenl.  Ev.,  Sec.  562;  Amos  V.  Hanford    v.    Obrecht,    38  111.    493; 

Sinnott,  4:  Scam.  440.  Underwood  v.  White,  45111.  437;  see 

■i  Simpson  \.  McFarland,  18  Fick.  Hanford   v.   Obrecht,    49    111.    146 

427;    People  v.    Niagara,   4  "Wend.  Matson  v.  Hanisch,  5   Bradw.  102 

217;    Sawyer  v.   Huff,  25    Me.  464;  Sim7nons    v.    Jenkins,  76    IU.    479 

Carroll  v.  Harris,  19   Ark.  237;  2  Haekett  v.  Jones,  34  111.  App.  563 


EEPLEYIN.  311 

stranger,  or  in  the  plaintiff  and  himself,  as  bailor  and  bailee, 
or  that  he  took  the  cattle  damage  feasant,  or  the  goods  for 
tolls,  customs,  or  services,  as  well  as  for  many  other  causes;  and 
he  may  have  a  return  until  his  demands  are  satisfied.'  To  a  dec- 
laration or  count  charging  only  a  wrongful  detention  of  the 
goods  of  the  plaintiff,  the  plea  of  non  cepit  is  inapplicable,  and 
would  be  declared  bad  on  a  demurrer,  or  might  be  stricken  out 
or  disregarded,  at  the  plaintiff's  election,  as  presenting  an  im- 
material issue.^ 

If  therefore  there  are  several  counts  in  the  declaration,  and 
a  taking  is  not  charged  in  all  of  them,  the  plea  is  to  be  limited 
accordingly,  in  this  manner: 

And  the  defendant,  etc.,  comes,  etc.,  and,  as  to  the  first  count  of  the  said 
declaration,  says  tliat  he  did  not  take  the  goods  and  chattels  in  the  said^rs^ 
count  mentioned,  or  any,  etc. ,  in  manner  and  form  as  the  plaintiff  has  above 
in  that  count  complained  against  him:    And  of  this,  etc. 

No.  165.    Plea  of  non  detinuit. 

{This  plea  is  the  same  in  form  as  non  cepit,  only  substituting  the  words 
wrongfully  detain  for  the  word  take.  When  pleaded  to  one  of  several 
counts,  and  after  non  cepit,  or  other  plea,  to  another  count,  this  plea  may  he 
as  follows:)  And  as  to  the  second  count  of  the  said  declaration,  the  defend- 
ant says  that  he  did  not  wrongfully  detain  the  goods  and  chattels  in  the 
said  second  count  mentioned,  or  any  or  either  of  them,  or  any  part  thereof, 
in  manner  and  form  as  the  plaintiff  has  above  in  that  count  complained 
against  him:  And  of  this  the  defendant  puts  himself  upon  the  country,  etc. 

The  declaration  in  replevin  charges  that  the  deiendant  de- 
tained the  goods  "  until,  etc.,"  that  is,  until  replevied.  The 
plea  should  therefore  be  that  he  did  not  detain  the  goods  (non 
detinuit,  etc.),  and  not  that  he  does  not  detain  them  {non 
detinef,  etc.).  The  action,  of  replevin  in  the  detinet — now  obso- 
lete— was  to  recover  the  value  of  the  goods,  and  damages 
where  the  goods  were  still  detained  by  the  defendant.^ 

In  the  present  action  in  the  detinuit,  the  plaintiff  can  only 

^Amos  V.  Sinnott,  4  Scam.   440;  ^  Ajnos  v.   Sinnott,   4  Scam.  440; 

Baker  V.  Fa les,  IQ  Mass.  155;  Ander-  Walpole  v.   Smith,   4  Blackf.  304; 

son  V.  Talcott,  1  Gilm.  365;    Vose  v.  Davis  v.  Calvert,  17  Ark.  85. 

Hart,  12  111.  378;    Gerher  v.  Monie,  n  qyviI.   PI.    145;  see    2  Bouv.  L. 

56  Barb.  652;  1  Chit.  PI.  499;  Bemus  Diet.  417;  Pierce  v.    Van  Dyke,  6 

V.  Beekman,  3  Wend.  667.  HiU.  613. 


312  KEPLEVIN. 

recover  damages  for  the  taking  of  the  goods,  and  for  the  de- 
tention till  the  time  of  the  replevy,  and  not  the  value  of  the 
goods  themselves.' 

Where  the  declaration  is  for  the  wrongful  detention  of  the 
goods  of  the  plaintiff,  the  plea  of  non  detinnit  is  said  to  be 
the  general  issue;  -  and  under  it  the  plaintiff  must  prove,  not 
only  the  wrongful  detention,  but  also  his  right  to  the  immedi- 
ate possession/  And  under  such  plea  he  must  prove  a  demand 
and  refusal,  or  what  would  amount  to  a  conversion,  in  order 
to  establish  an  unlawful  detention  by  the  defendant." 

This  plea  admits  the  right  of  property  to  be  in  the  plaintiff, 
and  only  puts  in  issue  the  detention  by  the  defendant;*  and  if 
the  issues  are  found  for  the  defendant,  he  is  merely  protected 
from  damages  and  costs,  and  he  will  not  be  entitled  to  a 
return  of  the  property."  Where  the  action  is  against  two  de- 
fendants, each  may  interpose  the  plea  of  non  detinuit  sepa- 
rately." When  trover  is  joined  with  replevin  (as  permitted  by 
statute  in  Illinois),  the  plea  of  "  not  guilty  "  to  the  count  in 
trover  may  be  as  follows : 

No.  166.    Plea  of  "not  guilty,"  to  count  in    trover,  when  joined   with 

replevin. 

And  as  to  the  third  count  of  the  said  declaration,  the  defendant  says  that 
he  is  not  guilty  of  the  supposed  grievances  above  in  the  said  third  count 
laid  to  his  charge,  or  any  or  either  of  them,  in  manner  and  form  as  the 
plaintiff  has  above  in  that  count  complained  against  him:  And  of  this  the 
defendant  puts  himself  upon  the  coimtry,  etc. 

•1  Chit.  PI.  146;  Potter  v.  North,  ^  In  galls  v.    Bulkley,   15    111.  224 

1  Saund.  347.  Wells  v.    McClenning,   23  111.    409 

^Amos  V,  Sinnott,  4  Scam.  440;  see  Anderson  v.  Talcott,!  Gilm.  365 

Walpole  V.   Smith,   4  Blackf.  304;  Johnson  v.  Howe,  2  Gilm.  342;  Vose 

Snook  V.  Davis,  6  Mich.  166.  v.  Hart,  12  111.  378;  Matson  v.  Han- 

^  Rogers  v.  Arnold.  12  Wend.  30;  isch.  5  Bradw.  102;  Miller  v.  Gable, 

Amos  v.  Sinnott,  4.  Scam.  440;  see  30  111.  App.  578. 

Ingalls  v.  Bulkley,  15  111.  224;  Jolm-  *  Vose  v.  Hart,  12  111.  378;  Bourk 

son  v.  Howe,  2  Gilm.  342.  v.  Riggs,  38  111.  320;   see  BoTjd  v.  Mc- 

^ Ingalls  v.    Bulkley,    15  111.   224;  Adams,  16  III.  146;  Ator  v.  Ri-x,  21 

Johnson  v.  Hoice,  2  Gilm.  342;  Sea-  111.  App.  309. 

ver  v.  Dingley,  4  Greenl.  306;   Beebe  ">  Boyd  v.  McAdams,  16  111.  146. 
\.  DeBaun,  3  Eng.  (Ark.)  510. 


KEPLEVIN.  Sl3 

No.  167.    Plea  of  property  in  the  defendant. 

(First  plea  non  cepit  or  non  detinuit,  as  ante,  No.  164  or  No.  165.)  And 
for  a  further  plea  in  this  behalf,  the  defendant  says  that  the  plaintiff  ought 
not  to  have  his  aforesaid  action  against  him,  the  defendant,  because  he 
says,  (*)  that  the  said  goods  and  chattels  in  the  said  declaration  mentioned, 
at  the  said  time  when,  etc.,  were  the  property  of  him,  the  defendant,  and 
not  of  the  plaintiff,  as  by  the  said  declaration  is  above  supposed :  And  this 
the  defendant  is  ready  to  verify;  wherefore  he  prays  judgment,  etc. 

The  conclusion  of  the  plea,  in  full,  is :  "  And  this  the  de- 
fendant is  ready  to  verify;  wherefore  he  prays  judgment  if  the 
plaintiff  ought  to  have  his  aforesaid  action  against  him,  the 
defendant;  and  he  also  prays  a  return  of  the  said  goods  and 
chattels,  together  with  his  damages  and  costs  in  this  behalf, 
according  to  the  form  of  the  statute '  in  such  case  made  and 
provided,  to  be  adjudged  to  him,"  etc.  If  the  plea  is  not  to 
the  whole  declaration,  it  is  of  course  to  be  limited  accordingly. 
See  the  remarks,  a7ite,  page  57. 

No.  168.    Replication  to  the  plea  of  property  in  the  defendant. 

In  tfee Com't. 

Term,  18—. 

A.  B.    ) 
vs.      >  Replevin. 

C.  D.  )  And  the  plaintiff,  as  to  the  plea  of  the  defendant  by  him  sec- 
ondly above  pleaded,  says  that  he,  the  plaintiff,  by  reason  of  anything  in 
that  plea  alleged,  ought  not  to  be  barred  from  having  his  aforesaid  action, 
because  he  says,  that  the  said  goods  and  chattels  in  the  said  declaration  men- 
tioned at  the  said  time  when,  etc.,  (*)  were  the  property  of  him,  the  plaint- 
iff, and  not  of  the  defendant,  as  he  has  above  in  that  plea  alleged:  And 
this  the  plaintiff  prays  may  be  inquired  of  by  the  country,  etc. 

It  is  held  that  under  the  plea  of  property  in  the  defendant, 
or  in  a  stranger,  in  an  action  of  replevin,  the  material  inquiry 
will  be  as  to  the  property  of  the  plaintiff  in  the  goods,  which 
he  must  be  prepared  to  prove,  the  onus  jprohandi  of  this  issue 
being  on  hira.^  And  under  such  plea  the  defendant  may  show 
any  legal  title  to  the  property,  no  matter  how  derived.^ 


'Rev.  Stat.  (1893),  1174; Rev.  Stat, 
(1895),  1258;  3  Starr  &  Curtis  2016 

*  Mcllvaine  v.  Holland,  5  Harr.  10 
Spraguev.  Kneeland,  12 Wend.  161 


V.  Sinnott,  4  Scam.  440;  VanNamee 
v.  Bradley,  69  111.  299;  Reynolds  v. 
McCormick,  62  111.  412;  Constantine 
v.  Foster,  57  111.  36;  Ballon  v.  Hush- 


Rogers   V.    Arnold,    12    Wend.  30;      ing,  46  111.  App.  174. 

Boyntonv.   Page,  13  Wend.  425;  2  ^O'Connor  v.   Trails.  Co.,   31   111. 

Greenl.  Ev.,Sec.  563.    But  see  J. ??ios      230;  Belcher  v.   Van  Duzea,  37  111. 


314  KEPLEVIN. 

If  the  issue  on  such  plea  is  found  for  the  defendant,  he  will 
be  entitled  to  a  return  of  the  property,  and  to  damages.' 

No.  169.    Plea  of  property  in  a  stranger. 

{As  in  No.  167,  ante,  to  the  asterisk,  and  then  proceed:)  that  the  said  goods 
and  chattels  in  the  said  declaration  mentioned,  at  the  said  timewlien,  etc., 
were  the  property  of  one  E.  F.,  and  not  of  the  plaintiff,  as  by  the  said  decla- 
ration is  above  supposed;  And  this  the  defendant  is  ready  to  verify;  where- 
fore he  prays  judgment,  etc. 

No,  170.    Replication  to  plea  of  property  in  a  stranger. 

{As  in  No.  16S,  ante,  to  the  as'erisk,  and  then  proceed:)  were  the  prop- 
erty of  the  plaintiff,  and  not  of  the  saidE.  F.,  as  the  defendant  has  above  in 
that  plea  alleged:  And  this  the  plaintiff  prays  may  be  inquired  of  by  the 
country,  etc. 

If  the  defendant  succeeds  on  the  plea  of  property  in  a 
stranger  on  the  trial,  he  is  entitled  to  a  return  of  the  prop- 
erty, and  to  damages  for  the  detention.  It  is  not  necessary 
that  he  should,  by  proof,  connect  himself  with  the  title  of  the 
stranger.  It  is  sufficient  that  the  right  of  property  is  not  in 
the  plaintiif.^  In  New  York  it  was,  however,  held  that  the 
defendant  must  connect  himself  with  the  title  of  the  stranger, 
and  thus  establish  a  right  paramount  to  that  of  the  plaintiff.^ 

Where  the  defendant  pleads  property  in  himself,  or  a  third 
person,  he  must  in  the  same  plea  traverse  the  plaintiff's  allega- 
tion of  right.  It  is  held  that  in  such  case  the  allegation  of 
property  in  the  defendant,  or  a  third  person,  is  only  to  be  con- 
sidered as  inducement  to  the  traverse  of  the  plaintiff's  right, 
and  the  plaintiff  must  take  issue  on  the  traverse,  and  not  on 
the  inducement;  and  on  such  issue  the  substantial  matter  in 
dispute  is  the  right  of  the  plaintiff  to  the  property.  The 
plaintiff,  it  is  held,  has  the  affirmative  of  the  issue,  and  must 

281;  see  Cleaves  v.  Herbert,   61  111.  v.  Stockey,  72  111.   495;  Seabury  v. 

126.  Eoss,  69  111.  533. 

1  Underwood  v.  ]V}nte,  45  111.  437;  «  Anderson  v.  Talcott,  1  Gilm.  865; 

Bourk  V.  Riggs,  38  111.  320;  Ander-  Van  Namee  v.  Bradley,  69  111.  299; 

sonv.  Talcott,  1  Gilm.  365;  see  Bel-  Kerns  v.  Potter,  71  111.  19;   Trout- 

cherv.  Van  Duzen,  ST  III.  281;  Ed-  man  v.  Hills,  5    Bradw.    396;   Mc- 

wardsv.  McCurdy,  13111.  496;  Han-  Farlan  v.  McClellan,  3  Bradw.  295; 

ford  V.   Obrecht,    49  111.   146;     3Ic-  Ator  v.  Rix,  21  111.  App.  309. 

Arthur  v.  Howett,  72  lU.  858;  Lill  «  Gerber  v.  Monie,  56  Barb.  652. 


REPLEVIN.  315 

sustain  his  riglit  or  fail  in  the  action;  and  what  the  plaintiff 
must  prove,  the  defendant  is  at  liberty  to  disprove.  This  he 
may  do  by  showing  a  state  of  facts  inconsistent  with  the 
plaintiff's  claim  of  right.' 

When  a  defendant  pleads  property  in  a  stranger,  and  the 
issue  on  the  plea  is  found  for  him,  such  finding  is  conclusive 
between  the  plaintiff  and  the  defendant  in  another  suit  for  the 
same  property;  but  such  stranger  is  not  bound  by  the  verdict 
in  such  case,  unless  he  is  in  some  way  directly  connected  in 
interest  with  the  party  pleading  the  plea.* 

No.  171.    Plea  of  justification,  by  a  sheriff,  under  a  fi.  fa.  against  a  third 

person. 

(First  plea,  non  cepit,  No.  164,  or  non  detinuit,  No.  165,  or  both,  may  be 
pleaded,  if  necessary;  next,  property  in  defendant.  No.  167;  next,  property 
in  a  stranger.  No.  169.)  And  for  a  further  plea  in  this  behalf,  tlie  defend- 
ant says  that  the  plaintiff  ought  not  to  have  his  aforesaid  action  against 
him,  the  defendant,  because  he  says,  (*)  that  one  J.  K. ,  before  the  said  time 
when,  etc.,  to  wit,  on,  etc.,  sued  out  of  the court  of  the  county  afore- 
said, a  certain  writ  of  fieri  facias,  of  that  date,  against  one  L.  M.,  directed 
to  the  sheriff  of  the  county  aforesaid,  by  which  said  writ  the  People  of  the 
said  State  of  Illinois  commanded  such  sheriff  that  of  the  goods  and  chat- 
tels, lands  and  tenements,  in  his  county,  of  the  said  L.  M.,  he  should  cause 

to  be  made  the  sum  of dollars,  damages,  and  the  sum  of  dollars, 

costs  of  suit,  which  by  the  consideration  of  the  said  court,  on,  etc.,  the  said 
J.  K.  recovered  against  the  said  L.  M.,  together  with  interest  thereon 
at  the  rate  of  six  per  centum  per  annum  from  the  time  of  recovering  the 

same  as  aforesaid,  and  also  the  further  sum  of ,  accruing  costs  on  the 

said  judgment,  and  that  such  sheriff  should  have  the  said  moneys  ready  to 
render  to  the  said  J.  K.  according  to  law,  and  should  make  return  of  the 
said  writ  in  ninety  days  after  the  said  date  thereof,  which  said  writ  was 
thereupon  on  the  said  day  of  the  date  thereof,  there  delivered  to  the 
defendant,  who  then  and  from  thenceforth,  until  and  at  and  after  the  said 
time  when,  etc.,  was  sheriff  of  the  county  aforesaid,  to  be  executed  in  due 
form  of  law;  by  virtue  of  which  said  writ  the  defendant,  as  such  sheriff 
as  aforesaid,  afterwards,  and  before  the  return  day  of  the  said  writ,  to  wit, 
on  the  same  day  in  the  said  declaration  mentioned,  being  the  said  time 
when,  etc.  (and  the  said  writ  being  then  in  full  force  and  unsatisfied),  there 
took  the  said  goods  and  chattels  in  the  said  declaration  mentioned,  and  de- 
tained the  same,  in  execution  of  the  said  writ;  which  are  the  same  taking 

^Anderson  v.  Talcott,  1  Gilm.  365;  there  cited,     2  Greenl.  Ev.,  Sec.  563. 

Atkins  V.  Byrnes,  71  111.  326;  Lamp-  But  see  Amos  v.  Sinnott,  4  Scam. 

ingv.  Payiie,  8'd  III.  A63',  Reynolds  V.  440;    Whitesides  v.  Collier,  7  Dana 

McCormick,  62  111.  412;   Prosser  v.  285. 

Woodward,  21  Wend.  205,  and  cases  *  Edwards  v.  McCurdy,  13  111.  496. 


316  EEPLEVIN. 

and  detention  in  the  said  declaration  above  supposed,  etc. :  And  the  de- 
fendant further  says,  that  the  said  goods  and  chattels  in  the  said  declara- 
tion mentioned,  at  the  said  time  when,  etc.,  were  the  property  of  the  said 
L.  M.,  and  not  of  the  plaintiflf,  as  by  the  said  declaration  is  above  supposed, 
and  were  subject  to  execution,  to  wit,  in  the  county  aforesaid.  And  this 
the  defendant  is  ready  to  verify;  wherefore  he  prays  judgment,  etc. 

The  plaintiff  may  reply  as  in  No.  170,  ante,  re-asserting 
his  own  right,  and  denying  that  of  the  defendant.  See  the 
remarks  under  the  two  iforms  of  pleas  next  preceding  the  last. 
The  above  form  may  be  readily  adapted  to  a  justification 
under  a  writ  of  attachment,  by  setting  out  such  writ  instead  of 
the  execution;  and  it  may  also  be  varied  to  suit  a  justification 
by  a  constable,  or  other  officer.  See  pleas  of  justification,  etc., 
in  trespass,  post. 

The  plea  must  aver  the  property  to  be  in  the  defendant 
in  the  execution;'  and  traverse  the  plaintiff's  right;'  and  allege 
that  the  defendant  took  the  property  by  virtue  of  the  execu- 
tion, and  that  it  was  subject  thereto.'  And  the  general  rule 
is,  that  where  an  officer  himself  attempts  to  justify  his  acts 
done  by  virtue  of  his  office,  he  must  allege  and  prove  himself 
an  officer  de  jure.* 

An  officer,  when  sued  in  trespass  or  replevin  for  taking 
property  on  execution,  can  justify  under  the  writ,  without 
setting  out  the  judgment  upon  which  such  writ  is  based;  but 
if  sued  by  a  stranger,  who  claims  the  property  by  virtue  of  a 
sale  anterior  to  the  levy,  it  seems  that  it  would  be  necessary  to 
produce  the  judgment  in  evidence,  in  order  to  defeat  the  sale 
for  fraud;  but  it  would  not  be  necessary  to  plead  it.'  The  pro- 
duction of  the  writ  under  which  the  officer  acts  is  for  him  a 
sufficient  justification.      The  rule  is  that  a  mere  ministerial 

^  Gentry  X.  Bargis,Q  Blackt.   261;  575;  Peck   v.   Hubbard,    4  Bradw. 

see  Simmons  v.  Jenkins,  IQ   111.479;  566;  Bliss  v.    Geer,   7  Bradw.  612; 

Lamping  v.  Payne,  83  111.  463.  Wheeler  v.  McCorrister,  24  111.  40; 

2Bemus  v.  Beekman,  3  Wend.  667;  Dayton  v.  Frye,  29  111.  525. 

Rogers  v.  Arnold,  12  Wend.  30;  Pros-  *  Case  v.  Hall,  21  111.  632;  Schlenck. 

ser  V.  Woodward.  21  Wend.  205;  see  er  v.  Risley,  3  Scam.  483. 

2  Greenl.  Ev.,  Sec.  563;  Anderson  v.  ^Jackson  v.  Hobson,  4  Scam.  411; 

Taleott,  1  Gilm.  365.  Holmes  v.  Huncastor,  12  Johns.  395; 

'  Billion  V.  Wright,  4  J.  J.  Marsh.  Stej^hensv.  Frazier,  2  B.  Mon.  (Ky.) 

254;  Edey  v.  Fath,    4  Bradw.  275;  250;  see  Damon  v.  Bryant,   2  Pick. 

Johnson    v.    Prussing,    4    Bradw.  413. 


REPLEVIN.  317 

officer,  who  executes  the  process  of  a  court  having  jurisdiction 
of  the  subject-matter,  and  having  also  jurisdiction  to  issue  such 
process,  in  general,  or  in  certain  specified  cases,  is  protected  in 
the  execution  of  such  process,  if  it  is  regular  on  its  face,  and 
apparently  within  the  jurisdiction  of  the  court  issuing  the 
same.' 

No.  172.    Plea  of  lien  on  property,  etc. 

{As  in  the  last  precedent,  to  the  asterisk,  and  then  proceed :)  that  before 
the  said  time,  when,  etc.,  to  wit,  on,  etc..  in,  etc.,  the  plaintiff,  being  pos- 
sessed of  the  said  carriage  in  the  said  declaration  mentioned,  as  of  his  own 
property,  delivered  the  same  to  the  defendant,  he  then  and  still  being  a 
carriage-maker,  for  the  purpose  of  having  the  defendant  put  tlie  said  car- 
riage in  good  order  and  repair  for  the  plaintiff,  for  reward;  and  thereupon 
the  defendant,  at  the  request  of  the  plaintiff,  before  the  said  time  when, 
etc.,  to  wit,  on,  etc.,  did  there  put  the  said  carriage  in  good  order  and  re- 
pair for  the  plaintiff;  and  thereby  the  plaintiff  then  and  there  became  and 

was  indebted  to  the  defendant  in  the  sum  of  dollars,  for  the  work  by 

the  defendant  done,  and  materials  by  him  furnished,  in  and  about  the  put- 
ting of  the  said  carriage  in  good  order  and  repair  for  the  plaintiff  as  afore- 
said :  And  the  said  sum  of  money  remaining  unpaid,  the  defendant,  at  the 
said  time  when,  etc.,  was  entitled  to  detain  the  said  carriage  as  and  for  a 
security  for  the  payment  of  the  said  sum  of  money  so  due  from  the  plaintiff 
to  the  defendant  as  aforesaid;  wherefore  the  defendant  did  then  and  there 
detain  the  said  carriage,  as  he  lawfully  might  for  the  cause  aforesaid;  whish 
is  the  same  detention  in  the  said  declaration  above  supposed.  And  this  the 
defendant  is  ready  to  verify;  whereupon  he  prays  judgment,  etc. 

By  a  little  alteration,  the  above  form  may  be  adapted  to 
other  cases  of  lien,  as  those  of  warehousemen,  innkeepers, 
attorneys,  etc. 

No.  173.    Plea  that  the  property  was  held  by  defendant  as  a  pledge.^ 

{As  in  No.  171,  ante,  to  the  asterisk  and  then  proceed:)  that  the  plaintiff,  be- 
fore the  said  time  when,  etc.,  to  wit,  on,  etc.,  in  etc.,  delivered  to  the  defend- 
ant the  said  goods  and  chattels  in  the  said  declaration  mentioned,  as  a  pledge 
to  be  by  him  kept  until  the  plaintiff  should  pay  to  the  defendant  the  sum  of 

dollars,  which  the  plaintiff  then  owed  to  him,  the  defendant:     And 

the  said  sum  of  money  remaining  unpaid,  the  defendant,  at  the  said  time 
when,  etc.,  there  detained  the  said  goods  and  chattels,  as   such   pledge  as 

'Jac&son  V.  iJo&son,  4  Scam.  411;  '^  Amos  v.    Sinnott,   4   Scam.  440; 

Parker  v.    Walrod,   16  Wend.  517;  Baker  v,  Fales,  16  Mass.  155;  Com. 

Stephens  v.  Frazier,  2  B.  Mon.  (Ky.)  Dig.,  Replevin,  A. 
250; 


318  EEPLEVIN. 

aforesaid,  as  he  lawfully  might  do,  for  the  cause  aforesaid;  which  is  the 
same  detention  in  the  said  declaration  above  supposed.  And  this  the  de- 
fendant is  ready  to  verify;  whei-ef ore  he  prays  judgment,  etc. 

Where  goods  or  choses  in  action  have  been  pledged  to  secure 
the  payment  of  a  debt,  the  owner,  before  he  can  have  the  right 
to  resume  possession  thereof,  must  pay  the  debt,  or  at  least 
make  a  sufficient  tender.' 

No.  174-    Avotcry  or  cognizance  for  rent. 

{First  plea,  non  cepit,  No.  164,  ante;  second  plea,  property  in  the  defend- 
ant, No.  167,  ante,  etc.)  And  the  defendant  well  avows  {or,  in  a  cognizance, 
"  as  bailiff  of  E.  F.  well  acknowledges")  the  taking  of  said  goods  and  chat- 
tels in  the  said  declaration  mentioned,  in  the  said  dwelling  house  in  which, 
etc.,  and  justly,  etc.,  becavise  he  says,  that  the  plaintiff  (or  one  "  G.  H.") 

for  a  long  time,   to  wit,  for  the  space  of ,  next   before  and  ending 

on,  etc..  and  fi'om  thence  until  and  at  the  said  time  when,  etc.,  held 
and  enjoyed  the  said  dwelling  house  in  which,  etc.,  with  the  appurte- 
nances, as  tenant  thereof  to  the  defendant  {or  "  the  said  E.  F."),  by  virtue 
of  a  certain  demise  thereof  to  him,  the  plaintiff  {or  "  the  said  G.  H."),  there- 
for made,  at  and  under  a  certain  yearly  rent  of dollars,  payable,  etc., 

in  every  year,  by  even  and  equal  portions;  and  because  the  sum  of dol- 
lars of  the  rent  aforesaid,  for  the  space  of ,  ending  as  aforesaid,  on, 

etc.,  and  from  thence  until  and  at  the  said  time  when,  etc.,  was  due  and  in 
arrear  from  the  plaintiff  to  the  defendant  {or  "  the  said  E.  F.,"  in  a  cogni- 
zance), he,  the  defendant,  well  avows  {or,  in  a  cognizance,  "  as  bailiff  of  the 
said  E.  F.  acknowledges")  the  taking  of  the  said  goods  and  chattels,  in  the 
said  dwelling  house  in  which,  etc.,  and  justly,  etc,  as  for  and  in  the  name 
of  a  distress  for  the  said  rent  so  due  and  in  arrear  to  the  defendant  {or  "  the 
said  E.  F.")  as  aforesaid,  and  which  still  remains  in  arrear  and  unpaid. 
And  this  the  defendant  is  ready  to  verify;  wherefore  he  prays  judgment, 
etc.  2 

No.  175.    Plea  in  bar  to  an  avoivry  or  cognizance  for  rent — Traverse  of  the 

demise. 

{Similiter  to  non  cepit,  as  ante.  No.  10.)  And  the  plaintiff,  as  to  the  said 
avowry  {or  "cognizance")  of  the  defendant,  says  that  the  defendant,  by 
reason  of  anything  by  him  in  his  said  avowry  {or  "cognizance")  alleged, 
ought  not  to  avow  {or  "as  bailiff  to  the  said  E.  F.  to  acknowledge")  the 
taking  of  the  said  goods  and  chattels,  in  the  said  place  in  which,  etc.,  and 
justly,  etc.,  because  he  says,  (*)  that  he,  the  plaintiff,  {or  "the  said  G.  H.") 
did  not  hold  or  enjoy  the  said  dwelling-house  in  which,  etc.,  with  the  ap- 
purtenances, as  tenant  thereof  to  the  defendant,  {or  "  the  said  E.  F.,")  under 

^Henry  v.    Eddy,  34  111.  508.  Kranse  v.  Curtis,  73  111.  450;  Lindley 

''Morris    on     Replevin,    239;    see      v.  Miller,  67  111.  344. 


EEPLEVIN.  319 

the  said  supposed  demise  thereof  in  the  said  avowry  (or  "  cognizance  ")  men- 
tioned, in  manner  and  form  as  the  defendant  has  above  in  his  said  avowry 
(o?'  "  cognizance '")  in  tiiat  behalf  alleged  :  And  tliis  tlie  plaintiff  prays  may 
be  inquired  of  by  the  country,  etc.* 

Under  the  issue  non  demisit,  or  "  no  rent  in  arrear,"  in 
replevin,  the  plaintiff  may  show  that  at  the  time  he  executed 
the  lease  he  was  owner  of  the  land  himself,  but  was  induced 
to  sign  the  lease  by  fraud  and  misrepresentation  of  the  de- 
fendant.' 

No.  176.    Plea  in  bar — to  an  avowry  or  cognizance  for  rent—"  no  rent  in 

ari^ear." 

(As  in  the  last  precedent,  to  the  asterisk,  and  then  proceed:)  that  no  part  of 
the  said  rent  in  the  said  avowry  {or  "  cognizance  ")  mentioned,  at  the  said 
time  when,  etc.,  w^as  in  arrear  from  the  plaintiff  to  the  defendant,  {or  "the 
said  E.F.,")  in  manner  and  form  as  the  defendant  has  in  liLs  said  avowry  {or 
"cognizance")  in  that  behalf  alleged:  And  this  the  plamtiff  prays  may  be 
inquu-ed  of  by  the  country,  etc^ 

The  plea  of  "  no  rent  in  arrear  "  admits  the  demise  as  well 
as  the  title  of  the  defendant  as  laid  in  the  avowry  or  cogni- 
zance.* In  replevin  the  issue  is  upon  the  right  of  possession  at 
the  commencement  of  the  suit.  And  although,  under  the 
statute,  the  court  will  not  deprive  the  plaintiff  of  actual  pos- 
session, where  he  has,  since  the  commencement  of  the  suit,  ac- 
quired a  right  to  it,  there  is  no  rule  by  which  he  may  have 
judgment  for  a  return,  upon,  the  strength  of  an  after-acquired 
lien.* 

For  other  pleas,  and  for  demurrers,  see  the  forms  in  Defenses 
to  an  Action,  and  Assumpsit,  ante. 

Judgment  for  plaintiff. — Section  23  of  the  statute  provides 
that  "if  judgment  is  given  for  the  plaintiff  in  replevin,  he 
shall  recover  damages  for  the  detention  of  the  propert}^  while 
the  same  was  wrongfully  detained  by  the  defendant.''  * 

'  Morris  Rep.  240.  ^  Ator  y.  Rix,    21    lU,   App.    309; 

^Robins  v.  Kichen,  8  Watts  390.  see  Hunter  v.   Whitfield,  89  III.  229; 

^Morris  on  Eeplevin,  241.  3Iead  v.  Thompson,  78  111.  62;   Wet- 

*  Alexander  v.  Harris,  4  Cranch  zelx.  Mayers,  91111.  497;  Prettyman 

299;   Hill  v.  Miller,  5  S.  &  R.  355:  v.  Vnland,  77  lU.  206. 
Williayns  v.  Smith,  10  S.  &  R.  202;  ^See  King  v.  Ramsay,  13  111.  619; 

Bloomer  v.  Juhel,  8  Wend.  448.  Matson  v.  Hanisch,  5  Bradw.  102. 


320  EEPLEVIX. 

Judgment  for  defendant — Retorno  habendo. — Section  22  of 
the  statute  provides  that  "if  the  plaintiff  in  an  action  of  re- 
plevin fails  to  prosecute  his  suit  with  effect,  or  suffers  a  non- 
suit or  discontinuance,  or  if  the  right  of  property  is  adjudged 
against  him,  judgment  shall  be  given  for  a  return  of  the  prop- 
erty and  damages  for  the  use  thereof  from  the  time  it  was 
taken  until  a  return  thereof  shall  be  made,  unless  the  plaintiff 
shall,  in  the  meantime,  have  become  entitled  to  the  possession 
of  the  property,  when  judgment  may  be  given  against  him  for 
costs  and  such  damage  as  the  defendant  shall  have  sustained; 
or  if  the  property  was  held  for  the  payment  of  any  money,  the 
judgment  may  be  in  the  alternative  that  the  plaintiff  pay  the 
amount  for  which  the  same  was  rightfully  held,  with  proper, 
damages,  within  a  given  time,  or  make  return  of  the  property."  ' 

A  judgment  in  replevin  is  binding  only  on  the  parties  and 
their  privies,^  but  is  not  binding  upon  a  third  person  in  whom 
the  defendant  may  plead  property." 

When,  in  a  replevin  suit,  a  return  of  the  property  is  awarded, 
the  plaintiff  may  return  a  part  of  the  goods,  provided  they  are 
separable  from  and  in  no  way  dependent  upon  the  others  for 
use  or  value,  and  if  they  are  in  the  same  condition  as  when 
taken,  the  defendant  will  be  bound  to  receive  them.  Such  a 
return  will  be  a  defense  pro  tanto  to  a  suit  on  the  bond.* 

» See  Mc Arthur  v.  Howett,  72  111.  ^Edwards  v.  McCurdy,  13  111.  496. 

358;  Lill  v.  Stookey,  72  111.  495;  Sea-         ^Ibid. 
bury  V.  Boss,  69  111.  538.  *  Edwin  v.  Cox,  61  lU.  App.  567. 


CHAPTER  X. 

TRESPASS. 

Trespass,  in  its  most  extensive  sense,  means  any  transgression 
or  offense  against  the  person  or  property  of  another;  and  there- 
fore all  actions  for  such  transgressions  or  offenses,  though 
variously  named,  are,  in  fact,  actions  of  trespass;  but  technic- 
ally trespass  signifies  a  wrong  committed  with  violence. 

At  common  law,  where  the  act  is  willful  and  the  injury  im- 
mediate, trespass  is  the  only  remedy.  But  where  the  act  is 
not  willful,  but  the  result  of  negligence,  either  trespass  or  case 
will  lie,  at  the  option  of  the  plaintiff,  even  though  the  injury 
may  be  immediate.' 

A  familiar  example  of  trespass  may  be  found  in  an  assault 
and  battery,  or  a  carrying  away  of  goods,  or  a  forcible  entry 
into  a  house,  or  upon  lands,  breaking  open  a  door,  or  tearing 
down  a  fence.  Such  an  act  would  be,  in  law,  a  trespass  vi  et 
ar?nis,  or,  in  the  English  phrase  now  used  in  pleadings,  a  tres- 
pass with  force  and  arms.  Early  in  the  history  of  the  law,  a 
very  slight  degree  of  violence  was  sufficient  to  constitute  this 
offense;  and  soon  afterwards  the  courts  held  that  it  might  be 
committed  in  some  cases  without  any  actual  force  whatever, 
implying  by  construction  the  force  necessary  to  make  it  a  tres- 
pass vi  et  armis,  if  the  act  was  unlawful.  Thus,  for  example, 
a  peaceable  entry  into  a  house  or  land,  with  intent  to  take  pos- 
session and  oust  the  true  owner,  was  regarded  as  a  trespass  vi 
et  armis.  And  as  there  grew  up  a  large  and  very  important 
class  of  trespasses,  in  which  there  was  neither  actual  nor  con- 
structive force,  and  to  which  the  law  of  trespass  with  force 
and  arms  could  not  be  made  applicable  by  any  construction, 
writs  were  devised  whereby  remedies  might  be  given  for  such 

^Moreton  v.  Hardern,  4  B.  &  C.  223;  3  Stephen's  N.   P.  2629. 
21  (321) 


322  TEESPASS. 

wrongs.  These  writs  were  called,  in  law  Latin,  Irevia  de 
transgressione  super  casum,  and  the  form  of  action  which  grew 
out  of  the  use  of  these  writs  is  now  called  trespass  on  the  case. 

It  is  often  a  matter  of  importance,  as  well  as  of  great  diffi- 
culty, to  determine  whether  the  action,  by  which  redress  is 
sought  for  certain  injuries,  should  be  trespass,  or  trespass  on 
the  case;  for  if  the  plaintiff  mistakes  his  form  of  action,  he  will 
meet  with  a  nonsuit,  and  be  subjected  to  costs.  In  some  of 
the  states  of  the  Union,  however,  among  others  Illinois,  the 
distinction  between  these  actions  has  been  abolished  by  statute, 
while  in  others  the  rigor  of  the  distinction  has  been  taken 
away  or  modified. 

Trespass  lies  when  the  injury  complained  of  is  itself  the 
wrong  done  by  the  tlefendant;  while  trespass  on  the  case  lies 
when  the  injury  was  consequential  upon  the  wrong  done,  and 
flowed  from  it  indirectly.  For  example,  trespass  on  the  case 
lies  for  an  injury  sustained  by  the  plaintiff  from  the  defend- 
ant's sale  to  him  of  unwholesome  meat,  or  wine,  especially 
where  it  was  the  business  of  the  defendant  to  vend  these  things. 
So,  for  an  injury  caused  by  the  want  of  skill  of  any  person  in 
the  exercise  of  his  profession,  as  a  physician  or  attorney. 
There  are  many  very  nice  and  subtle  distinctions  in  the  laAv  of 
trespass.  It  is  certain  that  a  man  may  begin  by  doing  a  right 
thing  in  a  right  way,  and  then  so  change  his  course  as  to  do  a 
wrong  thing,  or  a  right  thing  in  a  wrong  way.  In  many  of 
these  cases,  such  person  thus  subsequently  trespassing  is  re- 
garded by  the  law  as  a  trespasser  ab  iriitio,  or  as  having  been 
a  trespasser  through  the  whole  of  his  conduct.  Thus,  if  in 
the  execution  of  legal  process,  an  officer  does  something  which 
is  distinctly  illegal,  the  law  considers  that  he  began  to  act 
with  intent  to  do  an  illegal  thing,  and  that  all  of  his  conduct 
was  tainted  by  this  intention,  and  was  therefore  illegal. 

Many  cases  have  turned,  and  much  argument  has  been  ex- 
pended, upon  this  distinction.  It  is  very  doubtful  whether  any 
man  can  be  made  a  trespasser  ahinitiohyR  subsequent  wrong- 
ful act,  unless  he  did  the  wrong  while  in  the  exercise  of  a 
strictly  legal  right,  which  the  injured  party  had  no  right 
to  resist.  The  rule  seems  to  be  confined,  b}^  the  best  authori- 
ties, to  the  cases  of  an  officer  of  the  law  acting  under  a  legal 


TKESPASS.  323 

warrant,  and  a  guest  of  an  inn.  It  is  extended  to  the  latter, 
because  a  licensed  innkeeper,  being  bound  by  law  to  receive 
a  guest,  is  then  protected  by  the  rule  that  if  the  guest,  thus 
exercising  his  positive  right  of  entry  peaceably  and  without 
offense,  while  in  the  house  does  a  wrong  to  the  innkeeper,  the 
offender  shall  be  held  to  have  entered  the  house  for  that  pur- 
pose, and  therefore  to  be  a  trespasser  from  his  entrance. 

The  Illinois  Practice  Act,  in  force  July  1, 18T2,  abolishes  the 
distinction  between  the  actions  of  trespass  and  trespass  on 
the  case;  and  provides  that  in  all  cases  where  trespass  or  tres- 
pass on  the  case  was  theretofore  the  appropriate  form  of  action, 
either  of  those  forms  may  be  used,  at  the  option  of  the 
plaintiff.'  The  subject  of  trespass  will  be  further  considered 
under  the  following  heads  :  1st,  Injuries  to  the  person;  ^d^ 
Injuries  to  personal  property ;  3d,  Injuries  to  real  property. 

I.      INJURIES  TO  THE  PERSON. 

Trespass  is  the  proper  remedy  for  an  assault  and  battery, 
wounding,  imprisonment  and  the  like;  and  it  also  lies  for  an 
injury  to  the  relative  rights,  wiien  occasioned  by  force,  as  for 
beating,  wounding  or  imprisoning  a  wife  or  servant,  by  which 
the  plaintiff  has  sustained  a  loss,"  though  the  damage,  the  loss 
of  service,  etc.,  were  consequential. 

It  is  the  only  remedy  for  a  menace  to  the  plaintiff,  attended 
with  consequent  damage,'  and  for  an  illegal  assault,  battery, 
wounding,  or  imprisonment,  when  not  under  color  of  process.* 
It  lies  for  an  assault  with  an  attempt  to  commit  a  battery;  * 
and  also  when  the  battery,  imprisonment,  etc.,  were  in  the 
first  instance  lawful,  but  the  party,  by  an  unnecessary  deo-ree 
of  violence,  became  a  trespasser  ah  initio!' 

'Rev.  Stat.  (1893),  1074;  2  Starr  &  ^Schneider  v.  McLean,  36  Baib. 

Curtis  1787;    Rev.  Stat.  (1895),  1158;  (N.  Y.)  495;  1  Chit.  PI.  167. 

see  Qay  v.  DeWerff,  17  111.  App.  417;  ^3  Penn.  176. 

Blalock  V.  Randall,  76  111.  224;  Krug  ^  1  Chit.  PI.  (11  Am.  Ed.),  167:Peose 

V.  Ward,  77  lU.  603:  Barker  v.  Koo-  v.  Burt,  3  Day,  485;  Elliott  v.  Broicn, 

zier,  80  IlL  205;  Kimball  v.  Miller,  2   Wend.  497;   Hannen  v.  Edes,  15 

54  111.  App.  665.  Mass.  347:   Bennett   v.  Apjjleton,  25 

M  Chit.  PI.  (11  Ed.)  167.  Wend.    371;   Boles   v.  Pinkerton,   7 

33  Black  Com.  120;  1  Chit.  PI.  (11  Dana  453;  Smith  v.   Yocum,  62  lU. 

Ed.),  167.  354. 


324:  TKESPASS 

In  the  case  of  an  assault  and  battery,  both  parties  may  be 
guilty  of  a  breach  of  the  peace,  and  may  be  indicted;  but  a 
civil  action  can  not  be  brought  by  each  against  the  other. 
And  although  the  defendant  may  have  been  the  aggressor,  yet 
if  the  plaintiff  not  only  used  more  force  than  was  necessary 
for  self-defense,  but  unnecessarily  abused  the  defendant,  he 
can  not  recover  damages,  but  must  pay  damages.*  Willfulness 
or  intention  on  the  part  of  the  defendant  to  do  an  injury  to 
the  person  of  plaintiff  is  essential  to  the  establishment  of 
liability  in  an  action  of  trespass  for  an  assault  and  battery.^ 

Trespass  lies  for  criminal  conversation;'  and  the  right  to  sue 
is  not  defeated  by  the  death  of  the  wife  before  the  action  is 
brought.*  It  may  be  maintained  by  a  father  for  a  forcible 
injury  to  his  son;*  and  it  lies  for  seducing  away  a  wife,"*  or 
servant,'  or  for  debauching  the  latter,*  force  being  implied, 
and  the  wafe  and  servant  being  considered  as  having  no  power 
to  consent;  and  a  count  for  beating  the  plaintiff's  servant,  j9t^r 
q'uod  servitium  amisit,  may  be  joined  with  other  counts  in 
trespass;'  and  though  it  has  been  usual  to  declare  in  case  for 
debauching  a  daughter,  it  is  now  considered  to  be  preferable 
to  declare  in  trespass.'" 

Trespass  will  lie  against  a  plaintiff  suing  out,  or  a  magistrate 
issuing,  void  process,  although  not  maliciously."  If  a  justice 
of  the  peace  officiously,  and  without  any  complaint  on  oath,  or 
personal  knowledge,  issues  his  warrant  to  apprehend  a  person,'' 
or  issues  process  in  a  cause  where  he  has  not  jurisdiction,  his 
proceedings  are  void,  and  he  becomes  a  trespasser.'^ 

Where  a  cajnas  has  been  issued  by  a  justice  of  the  peace, 

^Elliott  T.  Broicn,  2  Wend.  497;  ^Bac.  Abr.  Trespass  C.  L.;  Beseler 

but  see  Dole  v.  Erskine,  35  N.  H.  503.  v.  Stephani,  71  111.  400. 

^ Razor  v.  Kiiisey,  55  111.  App.  605;  « 1  Chit.  PI.  (11  Am.  Ed.),  167. 

In  re  Mtillin,  118  111.  551.  ^^  Akerley  v.  Haines,  2  Caine  292; 

3  Yundt  V.  Hartrunft,   41   111.    9;  2  Aiken  359;  2  M.  &  Sel.  436;  1  Chit. 

Loice  V.  Massey,  63  111.  47.  PI.  (11  Am,  Ed.),  168. 

'^  Yundt  V.  Hartrunft,  41  111.  9.  ^^  Hayden  v.   Shed,   11  Mass.  500; 

^Hammer  v.  Pierce,  5  Harr.  (Del.)  Albeex.  Ward,  8  Mass.  79. 

Yi\^  ''^  Flack  V.  Harrington,  Breese  213. 

^  Yundt    V.  Hartrunft.  41   III.  9;  ^^  Hidl  v.  Blaisdell,  1  Scam.  332; 

see  Lowex.  Massey.  62  111.  47.  see  Moore  v.  Watts,   Breese  43  n.; 

^  Weedon  v.  Timbrell,  5  Term.  361;  3Iiller  v.  White,  80  111.  580;  Wilmer- 

1  Mod.  81.  ton  V.  Sample,  42  111.  App.  254. 


TEESPASS.  325 

without  a  sufficient  oath,  the  person  who  has  sued  out  the 
writ  is  not  answerable  in  trespass  vi  et  armis,  the  magistrate 
being  the  proper  person  to  pass  upon  the  sufficiency  of  the 
oath;  nor  would  the  magistrate  be  liable  in  tresjmss,  if  he  had 
jurisdiction  to  issue  the  process.' 

Direct  and  immediate  force,  employed  by  one  person  against 
another  without  permission,  with  malice,  constitutes  a  tres- 
pass, however  slight  the  injury  produced;  but  it  is  otherwise 
if  force  is  used  with  permission.*  A  person  who  directs  or  in- 
vites the  commission  of  a  trespass,  is  guilty  as  a  principal,  and, 
w^hen  sued  for  the  act,  can  not  be  permitted  to  show  that  the 
trespass  would  have  been  committed,  without  his  interfer- 
ence,^ but  one  who  approves  of  a  trespass  after  it  has  been 
committed,  is  not  in  law  a  trespasser  unless  it  was  committed 
in  his  name  or  for  his  use." 

"Where  the  defendant  drove  his  carriage  against  the  carriage 
of  the  plaintiff,  on  the  public  highway,  by  means  whereof  the 
plaintiff  was  thrown  out  and  injured,  it  was  held  that  the  ac- 
tion for  the  injury  to  the  plaintiff's  person  should  be  in  tres- 
pass.^ An  action  of  trespass  will  lie,  in  Illinois,  against  a 
steamboat,  for  an  assault  and  battery  committed  by  the  mate 
or  other  officer  of  the  boat  on  the  person  of  a  passenger,  while 
such  boat  is  navigating  the  rivers  within  or  bordering  upon 
the  state.^ 

"Where  a  sheriff,  in  order  to  arrest  a  debtor  on  execution, 
breaks  open  the  outer  door  of  his  dwelling-house,  the  sheriff 
and  those  w^ho  aided  in  so  doing  are  trespassers,  though  they 
act  by  command  of  the  sheriff.^     Persons  summoned  by  an  offi- 

1  Outlaw  V.    Davia,    27    III.   467;  v.  Block,  39  111.  App.  564;  McVeagh 

Blalockv.  Randall,  76  111.  224:  Bas-  v,  Baily,  29  111.  App.  614;    Ciidahy 

sett  V.  Bratton,  86  111.  152;  Gay  v.  v.  Powell,  35  111.  App.  31. 

DeWerff,   17  Brad.  417;   Loicrey  v.  *  Grundy.  Van  Vleck,  69  III.  478; 

Hately,  30  111.  App.  297;  Wilmerton  Reed  v.  Rich,  49  111.  App.  262. 

V.  Sample,  42  111.  App.  254.  ^  Burdick  v.  Worrall,  4  Barb.  596; 

"^Cadwell  v.  Farrell,  28  lU.   438;  4  Barb.  596;  seel  Chit.  PI.  (UAm. 

Harrison  v.  Ely,  120  111.  83;    Atcld-  Ed.),  128. 

son  V.  Didlam,  16  111.  App.  43.  ^  Loy  v.  Aubrey,  28  III.  413. 

3  Coats  V.   Darby,    2  Comst.  517;  '  Hooker  v.  Smith,  19  Vt.  153;  see 

BeU  V.  Miller,  5  Ohio  251;  see  Sund  1  Chit.  PI.  (11  Am.  Ed.),  185. 


323  TRESPASS. 

cer  to  assist  in  the  execution  of  a  legal  process,  are  justifiable 
in  their  acts  to  the  same  extent  that  the  officer  Avoukl  be/ 

A  private  individual  can  not  arrest  a  person  on  a  mere  sus- 
picion that  he  has  been  guilty  of  a  crime;  ^  but  if  a  crime  has 
actually  been  committed,  and  the  person  accused  is  guilty,  and 
there  is  danger  of  his  escape,  a  private  individual  will  be  jus- 
tified in  making  or  causing  the  arrest  of  such  accused  person,'* 

Where  there  is  well  grounded  suspicion  that  a  person  has 
committed  a  crime,  and  there  is  danger  of  an  escape,  an  officer 
may,  in  his  own  bailiwick,  arrest  the  suspected  person,  with- 
out a  warrant/  If  a  person  enters  the  premises  of  another, 
and  is  requested  to  depart,  but  refuses  so  to  do,  the  latter  may 
eject  the  intruder,  without  incurring  a  liability  as  a  trespasser, 
provided  he  uses  no  more  force  than  is  necessary  for  that  pur- 
pose/ 

Where  a  railroad  conductor  forcibly  expels  a  passenger  from 
a  train,  between  the  usual  stopping  places  on  the  road,  because 
the  passenger  refuses  to  pay  his  fare,  the  railroad  company 
will  be  liable  in  trespass/  At  common  law,  actions  for  inju- 
ries to  the  absolute  rights  of  the  person,  as  for  assaults,  bat- 
teries, wounding,  injuries  to  the  health,  liberty  and  reputa- 
tion, could  only  be  brought  in  the  name  of  the  person 
immediately  injured,  and  if  he  died  the  remedy  determined; 
or  if  the  person  who  committed  the  injury  died  the  suit  like- 
wise abated.'  In  Illinois  it  is  provided  by  statute  that  actions 
for  injuries  to  the  person  (except  slander  and  libel)  shall  sur- 
vive." 

At  common  law,  for  injuries  to  the  person  or  property  of 
the  wife,  committed  hefore  marriage,  where  the  cause  of  action 

^  Payne  v.  Green,  10  S.  &  M.  507;  Phillips  v.   Springfield,   39  111.  83; 

see    Elder  v.   Morrison,  10  Wend.  By.  Co.  v.  Gastka,  128  III.  Q\3. 

128;  Oystead  v.  Shed,  12  Mass.  506.  «  Ry.  Co.  v.   Peacock,   48  111.  253; 

•^  Kindred  V.  Stitt.51  111.  401;  Dodds  R.  R.  Co.  v.  Latimer,  128  111.  163. 

V.  Board,  43  111.  95;  Umd  v.  Block,  '  1  Chit.  PI.  60-68;   Reed  v.  R.  R. 

39  III.  App.  553.  Co.,   18  111.    403;  Yundt  v.    Hart- 

Ud.;but   see  3  Chit.  PI.  1081;    2  ran/^41111.  9. 

Swan's  Pr.  780.  »  j  gtarr  &  Curtis  An.  Stat.  247; 

■^Id.;l  Chit.  Crim.  Law  21;   see  4  Rev.    Stat.    (1893)    129;   Rev.    Stat. 

Bla.  Com.  289;  1  Hale's  P.  C.  587.  (1895)  129;  see  R.  R.  Co.  v.  aCo7i- 

5  Woodman  v.  Howell,  45  111.  367;  nor,  19  111.  App.  591. 


TRESPASS.  327 

would  survive  to  the  wife,  or  for  injuries  to  the  2y^Pson  of  the 
wife  darin'j  coverture,  by  battery,  slander,  et3.,  the  husband 
and  wife  must  join  in  the  action;  and  if  slie  dies  before  judg- 
ment therein  it  will  abate.'  But  if,  after  judgment,  the  wife 
dies,  the  judgment  survives  to  the  husband.^  Actions  for  torts 
committed  by  a  woman  before  her  marriage,  or  for  torts  com- 
mitted by  the  wife  during  coverture,  as  for  an  assault,  slander, 
etc.,  must  be  brought  against  the  husband  and  wife  jointly. 
In  trespass  against  husband  and  wife  for  her  tort  before  cover- 
ture, or  a  wrong  committed  by  her  alone  during  coverture, 
if  she  dies  before  judgment,  the  suit  will  abate;  but  if  the  hus- 
band dies,  or  becomes  bankrupt,  her  liability  will  continue.* 

In  Illinois,  by  virtue  of  the  statute  of  1861,  a  married 
woman  may  sue  alone  for  personal  injuries.* 

II.       INJURIES    TO    PERSONAL    PROPERTY. 

The  action  of  trespass  lies  either  for  an  unlawful  taking  of 
a  personal  chattel,  or  for  an  injury  to  such  chattel  while  in  the 
possession  of  the  general  owner,  or  of  a  person  having  a  spe- 
cial property  in  it,  as  a  bailee.*  For  most  unlawful  takings 
this  action  is  a  concurrent  remedy  with  trover;  °  and  it  is  held 
that  trespass  for  taking  goods  may  be  sustained  by  proof  that 
the  defendant  unlawfully  exercised  authority  over  them, 
against  the  will  and  to  the  exclusion  of  the  owner,'  althouo>h 
there  was  no  manual  taking  or  removal  of  the  goods.^  Tres- 
pass lies  against  an  officer  who  takes  the  goods  of  the  owner 
under  an  execution  or  attachment  against  a  third  person.' 

The  taking  of  goods  by  an  officer,  as  such,  but  without  au- 

'  1  Chit.  PI.  (11  Am.  Ed.)  67,  73.  ■>  Dexter  v.  Cole,  6  Wis.  319. 

^StrooiJ  V.  Sicarts,  12  S.  &  R.  76.  ^Miller  v.  Baker,  1  Met.  27. 

3 1  Chit.  PI.  (11  Am.  Ed.)  92,  93.  ^  Gauch    v.    Mayer,    27    111.    134; 

*Rev.  Stat.  (1895)  855;  Chestnut  v.  Markley  v.  Rand,  12  Cal.  275;  Nagle 

Chestnut,   77  111.  346;    City  v.  Mc-  v.  Mullison,  34  Penn.  48;  Trieber  v. 

Graw,  75  111.  566.  Blocher,  10  Md.   14;  Hesing  v.  Mc- 

=  1  Chit.  P.  (11  Am.  Ed.),  168,  171;  Closkey,  37  111.  341;  1  Chit.  PI.  (11 
Wright  v.  Ramscot,  1  Saund.  84;  Am.  Ed.)  185;  Loehe  v.  Duncan,  53 
Brou-nv.Folu'ell,dlia\st.5m;Gibbs  111.  App.  373;  llg  v.  Biirhank.  59 
V.  C/iase,  10  Mass.  130;  see  Franken-  111.  App.  291;  WinclmiUer  v.  Chap- 
thai  v.  Camp.  55  111.  169.  man,  38  III.  App.  276;  Pike  v.  Col- 

n  Chit.  P.  (11  Am.  Ed.)  171.  vin,  67  111.  227. 


32S  TEESPASS. 

thority  of  law,  is  a  trespass.'  And  where  an  officer,  under 
process  of  law,  sells  personal  property  before  or  after  the  time 
prescribed  by  law/  or  sells  the  entire  property  in  goods  owned 
by  two  jointly  under  an  execution  against  one  of  them,*  or  in 
any  other  manner  abuses  his  legal  authority  he  becomes  a 
trespasser  ab  initio.*  And  an  officer  is  liable  in  trespass  if  he 
seizes  goods  under  an  execution  and  advertises  them  for  sale, 
but  neglects  to  sell  them,* 

If  a  distress  warrant  is  executed  in  the  night  time  it  is  a 
trespass.® 

The  statute  of  Illinois,'  in  force  July  1,  1872,  provides, 
that  "  if  any  officer,  by  virtue  of  any  execution  or  other 
process,  or  any  other  person,  by  any  right  of  distress,  shall  take 
or  seize  any  of  the  articles  of  property  exempted  by  the  stat- 
ute from  levy  and  sale,  such  officer  or  person  shall  be  liable  to 
the  party  injured  for  double  the  value  of  the  property  illegally 
taken  or  seized,  to  be  recovered  by  action  of  trespass,  with 
costs."  This  provision  is  similar  to  that  contained  in  the  act  of 
February  22,  1861.*  The  defendant  in  execution,  in  such  case, 
may  proceed  against  the  officer  who  seizes  his  property 
exempted  by  the  statute,  either  for  double  the  value,  or  the  sim- 
ple value  of  the  property  seized.'  If  he  declares  in  the  com- 
mon form  of  the  action  of  trespass,  without  any  reference  to 

1  Stewart  v.  Wells,  6  Barb.  19.  v.    TJwrnburgh,   10    Cal.    189;  3Iel- 

^  Smith    V.    Gates,    21    Pick.   55;  ri7Ze  v.  5ro?CTi.  15  Mass.  82;  see  Chit. 

Pierce  v.  Benjamin,   14    Pick.  356;  PI.  179,  185;  Hesing  v.  McCloskey, 

Purrington  v.  Loving,  7  Mass.  388;  37  111.  341. 

Carnrick  v.  Myers,  14  Barb.  9;  Vail  ^  Bond    v.    Wilder,    16     Vt.    393; 

V,  Lewis,  4  Johns.  450;    Barley  v.  Freeman  v.  Smith,  80  Penn.  264. 

Tipton,  29  Mo.  206;  Stetson  v.  Gold-  >>  Sherman  v.  Dutch,   16  111.   283; 

smith,  30  Ala.  602;  Stetson  v.  Gold-  Arch.  Land.  &  Ten.  119. 

smith,  31  Ala.  649;  Emory  v.  Hap-  '  1  Starr  &  Curtis  114;  Rev.  Stat. 

good,  7  Gray  55;  Williamsv.  Ives,  25  (1893)  727;  Rev.  Stat.  (1895)  775;  see 

Conn.  568;  Carrier  v.  Esbaiigh,  10  Clinton  v .  Kidivell,  82  111.  427;  Race 

Pa.  St.  239.  v.  Oldridge,  90  111.  250. 

3  Smyth  V,  Tankersley,  20  Ala.  212;  »  Gross'  Stat.  584. 

Markley  v.  Rand,  12  Cal.  275.  »  Cornelia  v.    Ellis,    11    III.    584; 

*Jarratt  v.  Gwathmey,  5  Blackf.  Amend  v.  31urphy,  G9  111.  SdH;  Wash- 

237;  Lear  v.  3Iontross,  50  111.  508;  burn  v.  Goodheart,  88  111.  229;  Figiie- 

Brush  V.   Fowler,   36  111.   53;   Sny-  ira   v.  Pyatt,  88   111.  402;  Heckle  v. 

dacker  v.  Bross,  51  111.  357;  Perkins  Grewe,  125  111.  58. 


TRESPASS.  329 

the  statute,  he  is  only  entitled  to  recover  simple  damages  for 
the  trespass;  if  he  claims  the  penalty,  he  should  declare  spe- 
cially on  the  statute.  The  statute  only  gives  the  penalty 
against  the  officer  levying  the  execution;  the  plaintiff  in  the 
execution  can  not  be  made  a  party  to  the  suit.' 

The  interest  of  a  tenant  in  common  in  personal  property 
stands  upon  the  same  footing  in  respect  to  exemption  laws  as 
like  interests  in  other  property,  where  the  possession  as  well 
as  the  title  is  several." 

Trespass  lies  for  any  immediate  injury  to  personal  property, 
occasioned  by  actual  or  implied  force,  though  the  wrongdoer 
may  not  take  away  or  dispose  of  the  property;  as,  for  shoot- 
ing or  beating  a  dog,  or  other  live  animals;  or  for  hunting  or 
chasing  horses,  cattle,  etc.^  If,  however,  a  person  is  injured 
by  the  dog  of  another,  or  the  peace  and  quiet  of  his  family 
are  disturbed  by  it,  and  there  is  no  other  way  of  preventing 
it,  he  may  kill  the  dog  without  becoming  liable."  So  a  person 
is  justifiable  in  killing  an  enraged  bull  in  the  necessary  defense 
of  himself  or  of  his  family.* 

It  is  not  in  general  necessary,  in  order  to  maintain  this  action, 
that  the  injurious  act  should  have  been  done  with  a  wrong- 
ful intent.'  It  is  sufficient  that  the  act  was  committed  with- 
out justifiable  cause,  though  accidentally  or  by  mistake.'  But 
in  some  cases,  as  in  actions  against  public  agents,  the  intent 
may  be  frequently  material  in  determining  the  question  of 
liability.®  And  when  a  sheriff,  after  a  secret  act  of  bank- 
ruptcy committed  by  A.,  takes  his  goods  under  an  execution 
against  him,  the  sheriff  can  not  be  sued  by  the  assignees  in 

'  Pacev.  Vmighv,!  Gilm.  30;  see  *  Brill  v.   Flagler,  23  Wend.  354; 

Bingham    v.    Maxcy,    15    111.    290;  Leonard  v.  Wilkins,   9  Johns.    233; 

Camphell    v.  Conover,    26    111.    64;  Ki7ig  v.  Kline,  6  Barr.  818;  Spray  v. 

Waldo  V.  Gray,  14  111.  184.  Amerman,  66  111.  309. 

•^  Heckler  v.  Grewe,  125  111.  58.  *  Russell  v,  Barrow,  7  Porter  106. 

3  3  Bla.  Com.  153;  Wood  v.  LaRue,  "  2  Hill  on  Torts  74;  1  (Jliit.  PI.  130, 

9  Mich.  158;    Amick  v.   O'Hara,   6  166;  Wat.  on  Tres.  §14  et  seq. 

Blackf.  258;  Cantrell  v.  Adderholt,  '  2  Hill  on  Torts  74;  Cafe  v.  Gate, 

28  Geo.  239;  Roby  v.  Reed,  39  N.  H.  44  N.  H.  211;  Dexter  v.  Cole,  6  Wis. 

iQU  Painter  v.  Baker,  16  111.  103;  319;  see  Paxtonx.  Buyer,  67111.1  o2. 

Brent  v.  Kimball,  60  111.  211;   Rey-  «  1  Chit.  PI.  130,  77;    6  Taunt.  29; 

nolds  V.  Phillips,   13  111.    App.  557;  Hall  v.  Smith,  2  Bing.  156;  M.  &  Sel. 

Burt  V.  Blake,  14  111.  App.  334.  27. 


330  TRESPASS. 

trespass,  but  only  in  trover,  because  such  officers  ought  not  to 
be  made  trespassers  by  rehition.' 

"When  one  sues  and  recovers  in  replevin,  and  gets  a  return 
of  the  property,  he  can  not  afterwards  sue  the  same  defend- 
ant and  another  person  in  trespass,  for  the  same  transaction, 
no  matter  whether  the  damages  in  replevin  have  been  paid  or 
not.'  The  validity  of  a  tax  may  be  brought  in  question  by  an 
action  of  trespass.'  The  fact  that  the  plaintijBf  in  an  action  of 
trespass  kept  a  bawdy  house,  is  no  defense  for  entering  the 
house  and  carrying  away  the  goods  therefrom." 

Who  may  maintain  the  action. — Possession,  actual  or  con- 
structive, with  property  in  the  chattel,  general  or  qualified,  is 
necessary  to  sustain  trespass.*  But  a  person  who  has  the  ab- 
solute or  general  property  may  support  this  action  although 
he  has  never  had  the  actual  possession,  or  although  he  has 
parted  with  the  possession  to  a  carrier,  servant,  etc.,  giving 
him  only  a  bare  authority  to  carry  or  keep,  etc.,  not  coupled 
with  an  interest  in  the  property.^  And  executors  and  admin- 
istrators may  support  trespass  for  an  injury  to  personal  prop- 
erty, committed  after  the  death  of  tlie  testator  or  intestate, 
and  before  the  probate  or  administration  was  granted;  and  so 
may  a  legatee,  after  the  executor  has  assented  to  the  legacy, 
for  an  injury  done  before  such  assent.' 

The  general  property  in  goods  and  chattels,  prima  facie, 
for  all  civil  purposes,  draws   to  it  the  possession;  ^  but  if  the 

1  Chit  PI.   130;    Smith  v.  Milles,  ^  1  Chit.  PI.  169;    Gordon  v.  Har- 

1  Term.  480.  per,  7  Term.  13;  Bertie  v.  Beaumont, 

«  Karrv.  Barstoiv,  24  111.  580.  16  East  33;  Strong  v.  Adams,  30  Vt. 

^  McClaughry   v.    Gratzenberg,  S9  221;  Overby  v.  JJ/cGee,  15  Ark.  459; 

111.  117.  Thorj)  V.    Burling,   11   Johns.    285; 

■»  Love  V.  Moynehan,  16  111.  277.  Tarry  v.  Brown,  34  Ala.  159. 

^  Brainard  v.    Burton,   5  Vt.  97;  '  Bac.    Abr.,  Executor,  n.  1;    Wil- 

Samjjson  v.   Henry,   11    Pick.    382;  braham  v.  Snow,   2  Saund.  47,  a;  1 

Daniels  v.  Pond,  21  Pick.  367;  Stuy-  Chit.  PL  169. 

vcsant  \.  Tompkins,  9  Johns.  61;  ^  Bird  x.  Clark,  ^'Da.y  2T2;  BucJc- 
Hoytv.  Geiston,  13  Johns.  141;  Gel-  ley  v. Dolbear,  "7  Conn.  235;  Gauche  \\ 
ston  V.  Schenck,  13  Johns.  561;  Mayer,  211  III  lU;  Walcott  v.  Pome- 
Clark  V.  Carleton,  1  N.  H.  110;  Root  roy,  2  Pick.  121;  Ayer  v.  Bartlett,  9 
V.  Chandler,  10  Wend.  110;  Hume  v.  Pick.  156;  Howe  v.  Keeler,  27  Conn. 
Tufts,  6  Blaekf.  136;  Cannon  v.  538. 
Kinney,  3  Scam.  10;  see  Craig  v. 
»  Gilbreth,  47  Maine  416. 


TRESPASS.  331 

general  owner  parts  with  his  possession,  and  the  bailee,  at  the 
time  wlien  the  injury  is  committed,  has  the  exclusive  rioht  to 
use  the  property,  the  inference  of  possession  is  rebutted, 
and  the  right  of  possession  being  in  reversion,  the  general 
owner  can  not  support  trespass.'  If,  however,  property  is 
loaned  for  an  indefinite  time,  the  owner  may  maintain  the  ac- 
tion against  a  person  who  takes  it  tortiously.'' 

Possession  of  personal  property  is  evidence  of  ownership, 
and  the  possessor  may  recover  in  trespass  against  any  person 
who  may  take  it  fi'om  him,  unless  such  person  has  a  para- 
mount right  to  the  possession  of  such  property.^  Where 
standing  crops  are  sold,  the  possession  is  constructively  in  the 
purchaser  until  it  is  time  to  harvest  them,  for  the  law  does  not 
require  him  to  take  manual  possession  of  them  until  that  time/ 
And  in  such  case  the  purchaser  is  not  only  entitled  to  a  reason- 
able time  after  the  crop  matures,  to  gather  it,  but  before  the 
vendor  can  rightfully  turn  his  cattle  into  the  field  he  must 
give  reasonable  notice  to  the  purchaser.' 

An  officer  has,  by  virtue  of  a  seizure  on  execution  or  attach- 
ment, sufficient  property  in  the  goods  seized  to  maintain  tres- 
pass;" but  the  plaintiff  in  execution  or  attachment,  or  the 
officer's  custodian  or  receiptor,  has  not.'  The  possession  of 
property  levied  upon,  in  the  hands  of  a  custodian,  is  the  pos- 
session of  the  officer  so  placing  it,  and  he  may  maintain  tres- 
pass against  one  who  removes  the  same.* 

1  Putnam  v.  Wytey,  8  Johns.  432;  230;  Tarry  v.  Broicn,  84  Ala.  159; 
Van  Bruritv.  ScJienck,  11  Johns.  SS5;  Hendricks  v.  Decker,  So  Barb.  298. 
Buckley  v.  Dolbear,  7  Conn.  235;  *  Bull  v.  Griswold,  19  111.  631. 
Soper  V.  Sumner,  5  Vt.  274;  Hart  v.  *  Ogden  v.  Lucas,  48  111.  492. 
Hyde,  5  Vt.  328;  Cannon  v.  Kinney,  ^  Brownell  v.  Manchester,  1  Pick. 
3  Scam.  10;  Gay  v.  Smith,  38  N.  H.  232;  Bond  v.  Padelford,  13  Mass. 
171;  Walker  v.  Wilkerson,  So  Ala.  3U;  Boot  v.  Chandler.  10  Wend.  UO; 
725;  1  Chit.  PI.  169.  Broiniing  v.  Skillman,  4  Zabr.   (N. 

2  Cannon  v.  Kinney,  3    Scam.  10.  J.)   351;  Btwt  v.  Blake,  14  Bradw. 

3  Gilson  V.  Wood,  20  111.  37;   Ber-  324;  Hanchett   v.   Ives,  33  111.  App. 
genx.  Riggs,  34  111.  173;  Williams  v.  471. 

Bridge,  14  La.  An.  732;  Craig  v.  Gil-  ^  Ladd  v.  North,  2  Mass.  514;  Bond 

breth,  47  Me.  416;  Demick  v.  Chaj)-  v.  Padelford,  13  Mass.  394. 

man,  11  Johns.  132;  Cookv.Hoivard,  "Hanchett  v.  Ives,  33  111.  App.  471 ; 

13  Johns.  275;  Potter  v.   Washburn,  Brownell  v.  3Ianchester,  I  Fick.  252 ; 

13  Vt.  558;  Barker  v.  Chase,  24  Me.  Thorp  v.  Burling,  11  Jolms.  285. 


332  TRESPASS. 

Against  whom  it  will  lie,  etc. — This  action  will  lie  not  only 
against  individuals,  but  municipal  corporations.'  So  a  railroad 
company  is  liable  if  its  servants  or  lessees,  or  the  contractors 
for  the  construction  of  the  road,  in  using  or  building  such  road 
commit  a  trespass.'' 

Where  several  persons  commit  a  trespass  they  are  jointly 
and  severally  liable,  and  the  acts,  declarations  and  knowledge 
of  any  one  of  them  may  be  chargeable  upon  all,  if  they  are 
shown  to  have  acted  in  concert."  In  this  action  there  are  no 
accessories.  The  person  who  commands  or  approves  is  equally 
guilty  Avith  the  one  who  performs  the  act;  *  and  if  the  evidence 
authorizes  exemplary  damages  against  one,  the  other,  if  he  is 
shown  to  have  acted  in  concert  with  him,  is  liable  to  the  same 
extent.^  The  jury  can  not  discriminate  between  joint  tres- 
passers and  assess  damages  against  them  severally,  according 
to  the  relative  enormity  of  their  offenses,*  but  the  jury  may 
find  one  defendant  guilty  and  acquit  the  other.'' 

An  attorney,  acting  in  such  capacity  merely,  and  in  good 
faith,  is  not  liable  in  trespass  for  seizing  goods,  but  if  he  assists 
in  any  other  capacity  he  is  equally  liable  with  others  participat- 
ing in  an  unlawful  seizure.* 

III.       INJURIES    TO    REAL    PROPERTY. 

Trespass  is  the  proper  remedy  for  a  wrong  done  by  breaking 
through  an  inclosure,  and  coming  into  contact  with  any  corpo- 

»  Allen  V.  City,  23  111.  332;  R.   R.  ^  Hair  v.  Little,  28  Ala.  236;  Clark 

Co.  V.  Wright,  5  Ind.  252;  3Iain  v.  v.  Bales,  15  Ark.  452;  see  Whitney  \\ 

R.  R.  Co.,  12  Rich.  (S.  C.)  82.  Turner,  1  Scam.  253;  Grund  v.  Van 

"  R.  R.  Co.  V.  miijjple.  22  111.  105;  Vleck,  69  111.  478. 

see  Allen  v.  City,  23  111.  332;  3Ic  Cor-  "  2  Hill,  Torts,  315;  Carney  v.  Reed, 

mick  V.  Tate,  20  111.  334;  R.  R.  Co.  v.  H  Ind.  417;  Clark  v.  Bales,  15  Ark. 

McCarthey,  20  111.  385;  Halliganv.  452;  Layman  v.  Hendrix,  1  Ala.  212; 

R.   R.Co.,   15  111.558;    Tel.  Co.  v.  but  see  cases  cited  contra,  2  Hill  on 

Satterfield.  34  111,  App.  386.  Torts,  316. 

^Ousley  V.  Hardin,   23    111.   403;  '  2  Hill  on  Torts,  312;  ilfcCarron  v. 

Hair  v.  Little,  28  Ala.  236;  Sartin  Q' Connell,  7  Cal.  152;  Brady  v.  Ball, 

V.  Saling,  21  Mo.  387;  Sviithwick  v,  14  Ind.  317;  Terpenyiing  v.    Gallup, 

Lord,  7  Jones  (N.  C.)  64.  8  Clarke    (Iowa)    74;     Gillerson  v. 

*  Whitney  v.  Turner,  1  Scam.  253;  Small,  45  Me.  17. 

Gilson  V.  Wood,  20  111.  37;  Oleson  v.  s  Arnold  v.  Phillips,  59   III.  App. 

Vpsahl,    69    111.    273;     Beveling  v.  213;  Hardy  v.  Keeler,  56  lU.  152. 
Sheldon,   83    111.   390;     Cudahy   v. 
Powell,  35  lU.  App.  29. 


TRESPASS.  333 

real  hereditament  of  which  another  is  the  owner  and  in  posses- 
sion, whereby  a  damage  has  ensued.  There  is  an  ideal  fence, 
extending  upwards  and  downwards  indefinitely,  which  encircles 
every  man's  land;  the  entry,  therefore,  is  breaking  through 
this  inclosure,  and  this  generally  constitutes  by  itself  a  right  of 
action.  There  must  have  been  some  injury,  however,  to  entitle 
the  plaintiff  to  recover,  for  a  man  in  a  balloon  may  legally  be 
said  to  break  the  close  of  the  plaintiff,  when  he  passes  over  it 
as  he  is  wafted  by  the  wind,  but  as  the  owner's  possession  is 
not  by  that  act  incommoded,  trespass  could  not  probably  be 
maintained;  yet  if  any  part  of  the  machinery  should  fall  upon 
the  land,  the  aeronaut  could  not  justify  an  entry  to  remove  it, 
which  proves  that  the  act  is  not  justifiable.'  But  the  slightest 
injury,  as  treading  down  the  grass,  is  sufficient.'' 

It  is  not  requisite,  to  maintain  the  action,  that  there  should 
have  been  a  wrongful  intent  in  committing  the  injurious  act.^ 
The  action  will  not  lie  against  firemen  who,  in  an  effort  to  ex- 
tinguish a  tire  and  save  property,  forcibly  enter  a  building  in 
the  absence  of  the  owner." 

Where  an  injury  is  occasioned  by  the  digging  of  a  ditch  on 
one's  own  land,  whereby  water  is  thrown  upon  the  land  of 
another,  the  remedy  of  the  latter  is  case,  and  not  trespass.^ 

An  action  for  entering  upon  the  close  of  the  plaintiff  is  sus- 
tained by  proof  of  a  trespass  upon  any  part  of  the  close  de- 
scribed." 

A  person  who  enters  upon  land  without  any  claim  or  color 
of  right  or  title,  and  keeps  possession,  is  a  trespasser,'  Any 
person  may  remove  a  fence  erected  across  a  highway,  without 

'Bouv.    Law    D.    601;   Guille   v.  v.  Tanner,  29  HI.  135;  see  Pfeiffer 

Swan,  19  Jolms.  381.  v.  Grossman,  15  III.  53. 

'^  Cortelyon  v.  Van  Brunt,  2  Johns.  ^  Gibson  v.  Leonard,  143  111.  182; 

357;  Steivart  v.   Doughty,  9  Johns.  Cooley  on  Torts,   313;    Proctor    v. 

113;  Clap  V.  Draper,   4  Mass.   266;  Adams,  113  Mass.  376. 

see  1  Chit.  PI.  159;  Pfeiffer  v.  Gross-  ^  Winkler  v.  Meister,  40  III.  349. 

man,  15  111.  53.  ^Procter  v.  Sullivan,  7  Gray  441; 

n   Chit.  PI.    150;  Roche  y.  Light  Knou-lesv.  Doiv,  20  N.  H.  135;  see  2 

Co.,  5  Wis.   55;  2  Greenl.  Ev.,  Sec.  Greenl.  Ev.,  Sec.  618,  a. 

622;  Higginson  v.  York,  5  Mass.  341;  ''Noble  v.  Smith,  2  Jolms.  52. 
Hayden  v.  Shed,  11  Mass.  500;  Beyer 


33J:  TRESPASS. 

being  guilty  of  a  trespass.'  Where  a  road,  after  its  survey 
and  location,  has  not  been  opened  for  the  use  of  the  public, 
nor  the  proper  notice  given  to  the  owner  of  the  land  to  re- 
move his  fence,  neither  the  commissioners  nor  any  other  per- 
son can  remove  the  fence  without  becoming  trespassers.'' 

Where  a  party,  without  any  search. warrant,  or  other  au- 
thority of  law,  enters  the  rooms  of  another,  searches  the  same 
and  seizes  therein  evidences  of  the  commission  of  crime,  the 
act  will  be  in  violation  of  the  civil  rights  of  the  latter,  and  a 
trespass,  for  which  the  former  may  be  held  liable  in  a  civil 
action.'' 

A  railway  company  has  no  right  to  the  possession  of  land 
for  its  right  of  way  until  the  damages  for  the  taking  have  been 
assessed  and  paid,  and  if  it  takes  possession  before  such  assess- 
ment and  payment,  without  the  owner's  consent,  it  is  a  tres- 
passer, and  the  owner  may  bring  ejectment  or  trespass,  or 
both,  and  recover  his  property,  and  such  damages  as  he  may 
have  sustained  by  the  unlawful  act,* 

The  nature  of  the  real  property  affected  must  in  general  be 
something  tangible  and  fixed,  such  as  a  house,  a  room,  an  out- 
house or  other  building,  or  land;  but  the  term  close  is  technical, 
and  signifies  the  interest  in  the  soil,  and  not  merely  a  close  or 
inclosure  in  the  common  acceptation  of  that  word." 

To  maintain  an  action  of  trespass  to  real  estate,  the  plaint- 
iff must  have  the  actual  or  constructive  possession,®  and  though 
the  title  may  come  in  question,  it  is  not  essential  that  it 
should.'  Any  person  in  the  actual  possession  of  land,  though 
without  any  other  title,  may  maintain  the  action  against  a 

^Bac.  Abr.,  Highways,  E;  Marcy  Caldwell,  17  III.  App.  409;  Lodge  v. 

V.  Taylor,  19  111.  634.  Klein,  115  111.  177;  Lee  v.  Toum,  118 

2  Taylor  v.  Marcy,  25  111.  518;  see  111.  304;  Wehhy.  Sturtevant,  1  Scam. 
Proctor  V.  Town,  25  111.  153;  Pool  v.  181;  R.  B.  Co.  v.  Woosley.  85  111. 
Breese,  114  111.  594.  370;  3Iiller  v.  Kirby.  74  111.  242;  By. 

3  Gindrat  v.  People,  138  111.    103.       Co.  v.  Beach,  29  lU.  App.  157;  Faith 
*R.  R.  Co.  V.  Gates,  120  111.  86.  v.  Yocum,  51  111.  App.  620. 
^Stammers  v.  Dixon,  7  East  207;  '  See  Dean  v.  Comstock.  32  111.  173; 

Harrison  v.  Parker,  6  East  154.  Alderman  v.  Directors,  91    111.  179; 

^Dean  v.    Comstock,  32   111.    173;      Shoup  v.  Shields,  IIQ  III  488. 
2  Greenl.  Sec.  614;  see  Coal  Co,  v. 


TEESPASS.  335 

stranger/  but  not  against  a  person  having  concurrent  posses- 
sion." 

In  Illinois,  it  is  held  that  he  may  maintain  it  against  the 
owner  of  the  legal  title/  as  the  owner  has  no  right  to  make  a 
forcible  entry,  even  against  a  tenant  holding  over,  or  upon  any 
other  person  wrongfully  in  possession.  The  law  in  such  cases 
(the  statute  of  forcible  entry  and  detainer)  has  given  him  a 
remedy,  and  he  must  resort  to  it.* 

A  trespasser  or  person  in  possession  as  a  Avrongdoer  can  not 
recover  against  the  owner  of  the  fee,  with  right  of  possession.^ 
The  possession,  where  that  is  alone  relied  on,  must  be  an 
actual  and  not  a  constructive  possession. °  While  it  is  true 
that  the  action  can  only  be  maintained  for  an  injury  to  the 
possession,  yet  it  is  not  necessar}^  that  such  possession  should 
be  visible  and  actual,  for  unless  there  is  an  adverse  occupancy, 
the  ownership  in  fee  draws  to  it  the  legal  possession.^ 

If  the  premises  are  actually  occupied,  the  action  must  be 
brought  by  the  person  in  possession;  if  they  are  vacant  and 
unoccupied,  the  person  having  the  legal  title  has  the  right  to 
possession,  and  must  bring  the  action.*  In  the  latter  case,  the 
real  owner  has  the  constructive  possession.'     But  if  the  plaint- 

^Inhab.y.Thac7ier,SUetc.  (Mass.)  ^ Hoofs    v.    Graham,    23    111.    81; 

239;  Parish  v.  Smith,  14  Pick.  297;  Frazier  v.  Carruthers.  44  111.   App. 

Kempton    v.    Cooh,    4    Pick.     305  61;  Harding  v.  Sandy,  43  111.  App. 

Weimer    v.    Loicery,    11    Cal.    104;  442;  White  v.  Naerup,  57  111.  App. 

Alhin  V.  Lord,  39  N.  H.  196:  Oglesby  114. 

V.  Stodghill,  23  Geo.  590;  Dean  v.  ^Vebb  ^r.  Sturtevant.  1  Scam.  ISl; 

Comstock,  32  111.  173;  Allen  v.  Taft,  Zell  v.    Beam,   31    Penn.    St.   304; 

6  Gray  552;  Carney  v.  Reed,  11  Ind.  Lame  v.  Gaskins,   5  Cal.    164;  see 

417;  Wiggitis  v.  Chance,  54  111.  175.  Winkler  v.  Meister,  40  111.  349. 

2/n7ia&.  V.  27iac7i€r,  3Metc.(Mass.)  "'Barber    v.   Trustees,  51  111.396; 

239.  see  Wells  v.  Howell,  19  Johns.  385; 

^  Smith  V.  Price,  42  111.  399;  B.  B.  Hunnewell  v.  Hobart,  42  Me.  565. 

Co.  V.  Cobb,  68  111.  53.  ^  Dean  v.   Comstock,  32  111.  173 

*Faru'ell  v.   Warren,  51   111.  467;  Halligan    v.    By.   Co.,   15  111.  560 

Beeder  x.  Purdy,  41  111.  279;  Page  v.  Wickham  v.  Freeman,  12  Jones  183 

DePuy,  40  111.  506;  Beeder  v.  Purdy,  Austin  v.  Saivyer,  9  Cow.  39;  Chat- 

48  111.  261.     But  see  Hoots  v.  Gra-  ham  v.  Brainerd,  11  Conn.  60;  Kemj)- 

ham,  23  111.  81;  Okeson  v.  Patterson,  ton  v.  Cook,  4  Pick.  305;  Shepard  v. 

29 Penn.  St.  22;  Haskins  v.  Haskins,  Pratt,  15  Pick.  32;  Shipmanw  Bax- 

67  111.  446;  Hubner  v.  Feige,  90  111.  ter,  21  Ala.  456. 

208.  ^Cook   V.  Foster,    2    Gilm.    652; 


336  TRESPASS. 

iff  fails  to  show  paramount  title,  or  possession,  at  the  time  the 
injuries  were  committed,  he  can  not  recover.' 

A  tenant  at  sufferance  can  not,  by  the  common  law,  have 
trespass  quare  clausumf  regit  against  his  landlord,'  and  a  lessor 
can  not  maintain  trespass  against  a  stranger  while  there  is  a 
tenant  in  possession.* 

Trespass  being  a  possessory  action,  it  is  not  necessary  that 
the  title  should  come  in  question.  But  if  it  does  come  in 
question,  as  under  a  plea  of  Uherum  tenementum,  and  the  plaint- 
iff has  neither  a  right  to  the  property  nor  to  the  possession, 
the  owner  of  the  fee  has  the  right  of  entry,  and  will  not  be 
liable  in  trespass  for  exercising  the  right  in  a  peaceable  manner.* 

Where  a  person  who  has  entered  upon  land,  under  a  parol 
agreement  for  the  purchase  of  the  same,  cuts  trees,  and  after- 
wards rescinds  the  agreement,  he  is  a  trespasser.^ 

Where  the  owner  of  land  agrees  with  another  that  he  may 
sow  the  land  on  shares,  they  may  maintain  a  joint  action 
of  trespass  against  a  third  person,  who  cuts  and  carries  aw^ay 
the  crop.** 

The  ow^ner  of  real  estate  in  the  possession  of  a  lessee,  other 
than  at  will,  can  not  maintain  trespass  for  an  injury  to  his 
reversionary  interest; '  but  he  can  where  the  lease  is  at  will 
only.*  Trespass  will  lie,  by  the  owner  of  real  estate,  against 
a  person  committing  waste  by  permission  of  the  tenant  at 
will."     But  it  will  not  lie  for  the  reversioner  against  a  person 

Gauche  V.  Mayor,  21  1\\.\M\  Olea-  *  Dean  v.  Comstoek,  32  111.  173; 
son  V.  Edmunds,  2  Sca.m.  A'iS;  Tur-  Wilcox  v,  Kinzie,'S  Scam.  218;  Cook 
penning  v.  Gallup,  8  Clarke  74;  v.  Foster,  2  Gilm.  652;  Gait  v.  By. 
Safford  v.  Basto,  4  Mich.  406;  Hub-  Co.,  157  111.  132. 
bell  V.  Rochester,  8  Cow.  115;  Van  ^Suffern  v.  Toivnsend,  9  Johns. 
Deusen  v.  Young,  29  Barb.  9;  War-  35;  Lyford  v.  Putnam,  35  N.  H.  563. 
ren  v.  Cochran,  10  Foster  379.  ^  Foot  v.  Colvin,  3  Johns.  216. 
1  Rockwell  V.  Jones,  21  111.  279.  "<  Lieno  v.  Ritchie,  8  Pick.  235;  Tay- 
^  Sampson  V.Henry,  13  Pick.  36;  lorx.  Toirjzsejid,  8  Mass.  411:  Wick- 
Hyatt  v .  Wood,  A  Johns.  150;  Far-  ham  \.  Freeman,  12  3 o\vas.\SZ;  Todd 
well  V.  Warren,  51  111.  467.  v.  Jackson,  2  Dutch.  (N.  J.)  525. 

^Camjibellv.  Arnold,  IJohns.  oil;  ^  Starr  v.  Jackson,   11  Mass.    519; 

Lienowv.  Ritchie,  8  Fick.  235;   Sut-  Inhab.  v.    Sprague,    15    Pick.    103; 

ton  V.  Westcott,  3  Jones  (N.  C.)  283;  George  v.  Fisk,  33  N.  H.  32. 

Lyford  v.  Toothaker,  39  Me.  28.  » Daniels  v.  Pond,  31  Pick.  367. 


TKESPASS.  337 

committing  waste  under  the  authority  of  a  tenant  in  dower/ 
or  for  life/ 

After  an  entry  on  a  tenant  at  sufferance,  the  owner  may 
have  trespass  quare  clausiLtn  f regit  against  him/  but  not  be- 
fore.* A  person  disseized  can  not,  until  entry,  maintain  tres- 
pass.* An  overseer  of  highways,  in  an  action  of  trespass 
against  him,  can  not  justify  his  trespass  by  showing  an  order 
from  the  commissioners  to  open  a  road,  where  a  road  or  high- 
way has  not  been  legally  laid  out.* 

Since  the  enactment  of  the  statute  of  1874  the  rule  of  the 
common  law,  which  requires  the  owner  of  cattle  to  keep  them 
on  his  own  land,  is  in  force  in  Illinois,  and  he  is  answerable  for 
their  trespasses.^  "Where  a  township,  under  the  township  organ- 
ization laws,  has  adopted  rules  prohibiting  cattle  from  running 
at  large,  and  there  are  no  regulations  requiring  fences,  the 
owner  of  such  cattle  is  liable  for  injuries  occasioned  by  them 
in  uninclosed  fields;  *  and  trespass  may  be  brought  to  recover 
.or  such  injuries,  although  prohibiting  ordinance  of  the  town 
provides  a  special  remedy.' 

"Where  the  owner  of  domestic  animals  is  guilty  of  trespass 
in  permitting  or  allowing  such  animals  to  enter  his  neighbor's 
close  and  do  damage,  he  is  chargeable  with  the  consequential 
damages  sustained  by  the  plaintiff  growing  out  of  such  tres- 
pass to  his  premises,  whether  the  owner  had  or  had  not  notice 
that  the  animals  had  a  vicious  propensity  to  do  the  particular 
act.'° 

^Shjattuck^.  Gragg,  23  Pick.  88;  Beyer  v.  Tanner,  29  111.   135;  Cald- 

Taylor  v.   Toumsend,  8    Mass.  411.  well  v.  Evans,  85  111.  170. 

^R.   R.   Co.v.   Goodwin,  111  111.  "^  Bui  pit  x.  Matthews,  U^  111.345; 

273.  Selover  v.  Osgood,  52  III.  App.  260; 

3  Dorrell  v.  Johnson,  17  Pick.  263;  McKowan  v.  Harmon,  56  111.   App. 

King  v.  Baker,  25  Penn.  St.  186.  368;  Misner  v.  Lighthall,  13  111.  609; 

*  Rising  Y.  Stannard,  11  Mass.  2S2;  Seelcy  v.    Peters,   5  Gilm.    130;  see 

3Iayo  V.  Fletcher,  14  Pick.  525;  Dan-  Durham   v.    Goodwin,  54    111.  469; 

forth  V.  Sargcant,  14  Mass.  491.  Westgate  v.  Carr,  43  111.  450;  Scott 

'  Bigelow  V.  Jones,  10  Pick.  161;  v.   Buck,    85    111.    334;    Ozhurn  v. 

Allen  V.  Tlmyer,  17  Mass.  299;  Blood  Adams,  70  111.  291. 

V.  Wood,  1  Met.  528.  *  Westgate    v.    Carr,    43  111.  450; 

^Dunning  v.   Mattheios,    16    111.  Bedden  v .  Clark,  16  III  338. 

308;    Guptail  v.    Teft,   16  111.   365;  ^  Ames  v.  Carleton,  AllW.  2Q\. 


22 


'  Lee  V.  Burk,  15  lU.  App.  651. 


338  TRESPASS. 

COMMENCEMENT    OF    THE    ACTION. 

An  action  of  trespass,  like  most  other  personal  actions  at 
law,  is  commenced  by  suing  out  a  summons,  or  a  cajnas  ad 
resjyondendum;  and  in  some  cases,  security  for  costs  is  re- 
quired. 

The  declaration. — The  declaration  should  state,  first,  the 
matter  or  tkhuj  affected;  second,  the  plaintiff's  right  thereto; 
third,  the  injury;  and  fourth,  the  damage  sustained  by  the 
plaintiff.' 

1st.  The  matter  or  thing  affected. — In  actions  brought 
for  injuries  to  real  property,  the  quality  of  the  realty,  as 
whether  it  consists  of  houses,  lands  or  other  corporeal  here- 
ditaments, should  be  shown.''  In  trespass  to  lands,  the  term 
close  is  proper,  although  the  ground  is  not  inclosed,  as  it  im- 
ports the  exclusive  right  of  possession  and  interest  in  the  soil.' 

In  actions  for  injuring  or  taking  away  goods  and  chattels, 
it  is  generally  necessary  to  state  their  quality,  quantity  or 
number,  and  value;  *  the  assigned  reason  being  that  a  former 
recovery  could  not  otherwise  be  pleaded  in  bar  of  a  second 
action  for  the  same  goods,  neither  could  the  defendant  prop- 
erl}^  defend  himself."  Therefore  it  is  in  general  insufficient, 
even  after  judgment  by  default  or  verdict,  to  allege  that  the 
defendant  injured  or  took,  etc.,  "  divers  goods  and  chattels  " 
of  the  plaintiff,  without  giving  any  description  of  them." 

In  trespass,  trover  and  case,  less  particularity  is  required 
than  in  detinue  and  replevin,  because  it  is  only,  in  the  two 
latter  forms  of  action  that  the  plaintiff  can  claim  or  recover  the 
goods  themselves.'  In  the  three  former  actions,  damages  only 
are  recoverable,  and  the  specification  of  quality  and  quantity 
in  a  general  way  is  allowed;  as  "  four  horses,"  "  two  packs  of 
flax,"  "  two  ricks  of  hay,"  a  "  library  of  books,"  etc.* 

>  1  Chit.  PI.  (11  Am.  Ed.)  376.  'M'Cl.  278;  Keeher  v.  Hicker,    11 

2 Id.;  And.  Steph.  PL  338.  East  576. 

3 1    Chit.    PI.    (11  Am.    Ed.)  376;  « Pope  v.   Tilman,  7  Taunt.  643. 

Stammers    v.    Dixon,   1    East    204;  ''  Taylor  v.   Wells,  2  Saund.  74;  1 

Vin.  Abr.,  Fences.  Chit.  PI.  (11  Am.  Ed.)  377. 

''I    Chit.  PI.   (11    Am.   Ed.)    377;  ^Beaumont  v.  Yantz,  Breese  26: 

And.  Steph.  PI.  337;  Taylor  w.  Wells,  Donaghe  v.   Eondeboush,    4  Munf. 

2  Saund.  74.  251;  Taylor  v.  Wells,  2  Saund.  74. 


TRESPASS.  339 

Perhaps  less  particularity  may  be  required  where  the  grava- 
men or  gist  of  the  action  is  the  breaking  and  injuring  of  a 
house,  etc.,  and  the  injury  to  goods  is  laid  chiefly  as  aggrava- 
tion; as  trespass  for  breaking,  etc.,  a  house,  and  taking  "  several 
keys"  belonging  to  the  doors  thereof,'  or  damaging  "the 
goods  and  chattels  therein,"  and  wrenching  open  and  injuring 
"  the  doors  thereof."  * 

With  respect  to  the  quality  or  species  of  the  goods,  the 
plaintiff  is  perhaps  bound  to  prove  the  fact  as  laid;^  but  with 
regard  to  the  quantity  or  number  and  value  of  the  goods,  he 
may  prove  less  than  he  charges  in  his  declaration,  but  he  can 
not  prove  more,  although  the  statement  is  under  a  videlicet; 
as,  if  the  declaration  is  for  "  divers,  to  wit,  ten  horses,"  he  may 
show  an  injury  to  one  horse,  but  not  to  eleven  horses.*  It  is 
therefore  prudent  to  lay  the  quantity  to  an  extent  clearly  ade- 
quate to  cover  the  largest  possible  amount,  but  at  the  same 
time  according  to  the  facts.* 

2d.  The  jplaintiff^s  right  or  interest. — It  is  laid  down 
as  a  fundamental  rule,  in  showing  title  in  actions  ex  delicto^ 
that  against  a  mere  wrong-doer,  or  person  apparently  having 
no  color  or  right,  mere  possession  suffices,  and  a  special  state- 
ment of  title  is  unnecessary.'  In  trespass,  trover,  detinue,  case 
or  replevin,  for  injuring  or  taking  away  goods,  etc.,  the  plaint- 
iff's right  to  or  interest  in  the  goods,  either  as  absolute  owner 
or  as  having  a  limited  right  therein,  is  not  otherwise  described 
in  the  declaration  than  by  the  averment  that  they  were  the 
goods  "  of  the  plainiiff,"  or  that  he  was  "  lawfully  possessed  of 
them,  as  of  his  own  property."  When  the  plaintiff  has  not  a 
possessory  right,  and  his  interest  in  the  chattel  is  reversionary, 
it  must  be  expressly  so  described  in  the  declaration,  which 
must  then  be  framed  in  case.^ 

^  Layton  v.   Grindall,   Salk.  643;  Breese,  26;  DonagJie  v.  Rondehoush, 

Taylor  v.  Wells,  2  Saund.  74.  4  Munf.  251. 

^'l  Chit.   PI.    (11   Am.   Ed.)    378;  *1  Chit.  PI.  (11  Am.  Ed.),  378. 

Clmviherlain  ^r.  Greenfield,  3  Wils.  « 1  Chit.  PI.  (11  Am.  Ed.)  379;  And. 

292;  And.  Steph.  PI.  339.  Steph.  PI.  343;   Com.  Dig.  Plead,  c. 

'Stephen  (2  Ed.),  352;  1  Chit.  PI.  39,  41;  Tidd  (9  Ed.),  443;    Taylor  v. 

(11  Am.  Ed.)  378.  Eastwood,  1   East  212. 

*See    Crispin  v.    Williamson,    8  M  Chit.    PL    (11    Am.  Ed.)    380; 

Taunt,    107;    Beaumont  v.    Yantz,  Pinkney   v.  Jnhab.,  2  Saund.    379, 


340  TRESPASS. 

Upon  the  same  principle,  in  trespass  for  a  wrong  relating  to 
land,  or  other  real  property,  a  special  or  particular  title  in  the 
plaintiff  need  not  be  shown  in  the  declaration.  The  averment 
in  describing  the  trespass,  that  the  close  or  house,  etc.,  in  ref- 
erence to  which  it  was  committed,  was  the  close,  etc.,  "  of  the 
plaintiff,"  or  other  equivalent  allegation,  is  sufficient;  and  under 
it  may  be  given  in  evidence  any  title  or  interest  in  possession 
which  is  adequate  to  the  support  of  the  form  of  action,  under 
the  circumstances  of  the  case.* 

If  no  property  or  interest  in  the  subject-matter  of  the  suit  is 
alleged  to  have  existed  or  been  vested  in  the  plaintiff  at  the 
time  the  injury  was  committed,  the  declaration  is  substantially 
defective;  the  objection  being  the  total  omission,  not  the  de- 
fective statement,  of  a  title.''  But  the  error  in  the  declaration 
may  be  cured  if  the  plea  admits  the  plaintiff's  property.^ 

3d.  Statement  of  the  injury.  —  In  the  declaration  in  tres- 
pass, which  lies  only  for  wrongs  immediate,  and  committed 
with  force,  the  injury  is  stated  without  any  inducement  of  the 
defendant's  motive  or  intent,  or  of  the  circumstances  under 
which  the  injury  was  committed.  The  injury  should  be  stated 
directly  and  positively,  and  not  by  way  of  recital;  and  there- 
fore a  declaration  charging  "  for  that  Avhereas,"  or  "  where- 
fore," the  defendant  committed  the  trespass,  is  bad  on  special 
demurrer.* 

In  the  statement  of  the  trespasses,  the  words  "  with  force 
and  arms  *'  {vi  et  arinis)  should  be  adopted;  and  the  conclusion 
of  the  declaration  should  be  "  against  the  peace,"  etc.  {contra 
pacem,  etc.);  "  but  an  omission  in  either  respect  is  only  cause 
of  special  demurrer,  and  is  aided  by  verdict." 

n.  13;  see  Kerry.  Sharp,   14  Serg.  Collier  v.   Moulton,   7  Johns.   Ill; 

&  Rawle  99;  Carlisle  v.  Weston,  1  Cofflnv.  Coffln,  2Miiss.  SQi;  Syme v. 

Met.  (Mass.),  26.            *  Griffin,   4  Hen.   &  Munf.    277;  see 

>  1  Chit.  PI.  (11  Am.  Ed.)  380;  Cory-  Marsteller  v.  McLean,  7  Cranch  158. 

ton  V.  Lithe,  2  Saund.  113,  a,  n.  1;  ^2  Chit.  PI.  (11  Am.  Ed.)  387,  388. 

Com.    Dig.   Plead.  3,  M.  9;  Hite\.  "Id.;  Stat.  4  &  5  Anne,  c.  16,  s.  1; 

Long,  6  Rand.  457.  Gross'  Stat.  12,13;  see  Kerr  v.  Sharp, 

'^  Pinkney  v.  Inhab.,  2  Saund.  379,  14  Serg.  &  Rawle,  403;  Higgins  v. 

n.  13;  Com.  Dig.  Plead.  3,  M.  9.  Hayward,    5   Vt.    73;    Gardner  v. 

3  1  Chit.  PI.  (11  Am.  Ed.)  379;  1  Sid.  Thomas,  14  Johns.  134;   William  v. 

184.  Bogan,  2  McC.  (S.  C.)  386;  Buntin 

*  Horr  V.  Chapman,  3  Salk.  637;  v.  Duchane,  1  Blackf.  56. 


TKESPASS.  841 

It  is  usually  sufficient  to  describe  the  tortious  act  or  injury 
generally,'  without  setting  out  the  particulars  of  the  defend- 
ant's misconduct.  And  it  will  in  general  suffice  that  the  tort 
is  correctly  laid  in  substance,  though  the  statement  is  not  lit- 
erally true,  provided  there  is  no  material  misstatement.  Thus, 
when  the  declaration  charged  that  the  defendant  struck  the 
plaintiff's  cow,  etc.,  whereof  she  died,  it  was  held,  after  ver- 
dict, that  there  was  no  fatal  variance,  although  the  proof  was 
that  the  plaintiff  was  obliged  to  kill  the  cow  to  shorten  her 
misery,  in  consequence  of  the  defendant's  violence.' 

In  an  action  ex  delicto,  upon  proof  of  part  only  of  the  injury 
charged,  or  of  one  of  several  injuries  laid  in  the  same  count, 
the  plaintiff  Avill  be  entitled  to  recover  j?;'6>  tanto,  provided  the 
part  of  which  is  proved  affords  jper  se  a  sufficient  cause  of 
action;  for  torts  are,  generally  speaking,  divisible.^ 

The  statement  of  the  time  of  committing  the  injury  is  sel- 
dom material; ''  and  though  a  time  ought  to  be  alleged,^  the 
injury  may  be  proved  to  have  been  committed  either  on  a  day 
anterior  or  subsequent  to  that  laid  in  the  declaration.^  And 
it  seems  an  omission  to  allege  a  time  would  be  aided  even  after 
a  judgment  by  default.^ 

Where  the  injury  was  capable  of  being  committed  on  sev- 
eral days,  as  in  trespass  to  land,  etc.,  it  may  be  described  as 
having  been  committed  on  such  a  day,  "  and  on  divers  other 
days  and  times  between  that  day  and  the  commencement  of 
this  suit;"  and  in  such  case  the  first  day  should  be  laid  ante- 
rior to  the  first  injurious  act,  because  the  plaintiff  would  not 
be  permitted  to  give  in  evidence  repeated  acts  of  trespass,  un- 
less committed  during  the  space  of  time  laid  in  his  declaration; 
though  he  might  recover  as  to  a  single  trespass  committed  be- 
fore the  first  day.* 

1 1  Qiit.  PI.  (11  Am.  Ed.)  391;  see  «  Co.  Lit.  283  a;  Earle  v.  Vale,   1 

Id.  232.  Saund.  24,  n.  1 ;    White  v.  Stubhs,  2 

2  1    Chit.    PL   (11  Am.   Ed.)  391;  Saund.  295,  n.  2. 

Hancock  v.  Southall,  4  D.  &  R.  202,  '  Higgins  v.  Higlifield,  13  East  407. 

3 1  Chit.  PI.  (11  Am.  Ed.)  292;  Pen-  »  1  Chit.  PI.  (Am.  Ed.),  393;  1  McC. 

ton  V.  Robart,  2   East  438;  Hite  v.  165;  Stra.  1095;  Salk.  639;  1  Stark. 

Blendford,  45  III.  6.  351;  Co.  Lit.  283;  see  McConnel  v. 

•»  1  Chit.  Pi.  (11  Am  Ed.)  393.  Kihhe,  33  111.  176;  Burnham  v.  Web- 

«  2 Harr.  1;  5  Taimt.  2;  5 Taunt.  15.  ster,  5  Mass.  266. 


342  TEESPASS. 

"Where  a  particular  space  of  time  is  assigned  by  a  contin- 
uando  for  the  torts,  it  seems  to  become  matter  of  description, 
and  not  a  mere  formal  allegation  of  time;  but  the  continuando 
may  be  waived,  and  one  trespass  even  before  the  first  da}^ 
laid  may  be  proved,  for  a  contintiando  ought  not  to  place  the 
plaintiff  in  a  worse  situation  than  if  one  trespass  only  was 
laid.'  But  where  the  act  complained  of  was  single  in  its 
nature,  as  an  assault,  it  would  be  demurrable  to  state  that  it 
was  committed  "  on  divers  days  and  times."  ' 

"YliQ ;place  is  only  material  in  local  actions,  as  for  injuries  to 
real  property,  etc.;  *  and  as  a  general  rule,  it  is  injudicious  to 
give,  when  not  necessary  to  do  so,  a  particular  local  descrip- 
tion, lest  there  should  be  a  variance  between  the  declaration 
and  the  proof.* 

4th.  The  damages. — The  general  rale  is  well  settled  that 
the  plaintiff  can  recover  no  greater  damages  than  are  laid 
in  his  declaration;  nhey  should  therefore  be  laid  sufficiently 
high  to  cover  the  largest  amount  that  may  be  shown  by  the 
proof.  Damages  are  either  general  or  special.  Those  which  nec- 
essarily result  from  the  injury  are  termed  general  damages, 
being  shown  under  the  ad  damnum,  or  general  allegation  of 
damages,  at  the  end  of  the  declaration;  for  the  defendant 
must  be  presumed  to  be  aware  of  the  necessary  consequences 
of  his  conduct,  and  therefore  can  not  be  taken  by  surprise  in 
the  proof  of  them.  Some  damages  are  always  presumed  to 
follow  from  the  violation  of  any  right  or  duty  implied  by  law; 
and  therefore  the  law  will  in  such  cases  award  nominal  dam- 
ages, if  none  greater  are  proved.  But  where  the  damages, 
though  the  natural  consequences  of  the  act  complained  of,  are 
not  the  necessary  result  of  it,  they  are  termed  sjjecial  damages^ 

'  Chit  PI.   (11  Am.  Ed.),  394;  see  Wieczosek,  151  111.  579;  Sumner  v. 

2   Id.  847,    n.;   Gould's  PI.  cap.   3,  Finegan,   15    Mass.    284;  Roach  v. 

Sec.  83  et  seq.  Damron,  2  Humph.  425;  Graves  v. 

2  Id.;  English  v.  Purser,   6  East  McKoen,  2  Denio  t  39. 

395.     But  see  Burgess  v.  Freelove,  2  *  1  Chit.  PI.  (11  Am.  Ed.),  395;  see 

B.  &  P.  425:  Phillips'  Ev.  134;  also  R.  R.  Co.  v.  Wieczosek,  151  111.  579; 

Benson  v.  Swift,  2  Mass.  50.  Meixsell  v.  Feezor,  43  111.  App.  180. 

n  Chit.  PI.  (Am.   Ed.),  394,  268;  '^  Stejjhens  x .  Sweeney,  2  Gilm.  375; 

And.    Steph.  PI.  330;  see  Reed  v.  R.  Foamier  v.  Faggott,  3  Scam.  347. 
R.  Co.,  18  111.  403;  see  R.  R.  Co.  v. 


TRESPASS.  S43 

which  the  law  does  not  imply;  and  therefore,  in  order  to  pre- 
vent a  surprise  upon  the  defendant,  they  must  be  particularly 
specified  in  the  declaration,  or  the  plaintiff  will  not  be  per- 
mitted to  give  evidence  of  them  on  the  trial.' 

Measure  of  damages.— Damages  are  given  as  a  compensa- 
tion, recompense,  or  satisfaction  to  the  plaintiff,  for  an  injury 
actually  received  by  him  from  the  defendant.  They  should 
be  precisely  commensurate  with  the  injury;  neither  more  nor 
less; '  and  this  whether  for  an  injury  to  his  person  or  estate.'* 

In  actions  of  trespass  for  taking  personal  property,  the 
measure  of  damages  is  in  general  the  value  of  the  p.ropertv 
when  taken;  *  and  interest  may  be  allowed  from  the  time  of 
the  taking  until  the  trial.^ 

Tindictive  damages. — But  wherever  the  elements  of  fraud, 
malice,  gross  negligence,  or  oppression  mingle  in  the  contro- 
versy, the  law,  instead  of  adhering  to  the  rule  of  exact  com- 
pensation, adopts  a  wholly  different  rule.  It  permits  the  jury 
to  give  what  it  terms  punitory,  vindictive  or  exemplary  dam- 
ages; in  other  words,  blends  together  the  interest  of  society 
and  of  the  aggrieved  individual,  and  gives  damages  not  only  to 
recompense  the  sufferer,  but  to  punish  the  offender." 

In  actions  for  assaults,  etc.,  evidence  may  be  given  of  the 
pecuniary  condition  of  the  plaintiff  and  the  defendant.^ 

>2  Greenl,   Ev.,  sec.  254;  1  Chit.  *Gilson  v.  Wood,  20  111.  37;  Miller 

PI.  (11  Am.  Ed.),  395,   396;  4  Bing.  v.  Kirby,  74  111.  242. 

317;  Rindar  v.  Wadsivorth,  2  East  *  Bradley  v.  Geiselman,  23  lU.  494; 

114;  Armstrong  v.  Percy,  5   Wend.  Hessing  v.  McCloskey,  37  111.  341. 

538;  DiekensoHY.  Boyle,  17  Pick.  78;  « Sedgwick  on  Damages  39;  Grable 

Baldwin  v.  R.  R.  Co.,  4  Gray  333;  v.  Margrave,   3  Scam.   373;  McNa- 

Olmstead  v.  Burke,  25  111.  86;  Sher-  mara  v.  King,  2  Gilm.  432;  Sherman 

man  v.  Dutch,  16  111.  283.  v.  Dutch,  16  111.  283;  Bull  v.  Gris- 

2 Greenl.   Ev,,  sec,    253;  Co.   Lit.  wold,  19  111,  631;   Bridge  Ass'n  v. 

257,  a;  2  Bla.  Com.  438;  Rocku'ood  v.  Loomis,  20  111.  237;  Footev.  Nichols, 

Allen,  7  Mass.  256;  Bussyv.  Donald-  28  111.  486;  Best  v.  Allen,  30  111.  30: 

son,  4  DalL  207;  3  Am.  Jur.  257;  see  Stalling  v.  Owens,  51  111,  92;  Drohn 

Hessing  v.  McCloskey,   37  111.  341;  v.  Brezrer,  77  111.  280. 

Bridge  Ass'n  V.  Loomis,  20  111.  237.  '^  Cochran  v.  Amnion,  16  111.  316; 

^Bridge  Ass'n   v.  Loomis,  20  111.  McNamara  v.  King,  2  Gilm.  432: 

237;  see  Sedgwick  on  Damages  39;  Grable  v.  Margrave,  3  Scam.  372; 

R.  R.  Co.  V.  Payzant,   87   111.    125;  Mullen  v.  Sjmngetiberg,  112  111.  140. 
Dearlove  v.  Herrington,  70  111,  251, 


8i4:  TRESPASS; 

Joinder  of  counts. — In  an  action  of  trespass,  the  plain  tiff 
may  join  counts  for  trespass  to  land,  to  the  person,  and  to 
personal  property;  and  each  cause  showing  an  independent 
cause  of  action,  he  may  recover  upon  such  counts  as  are  sus- 
tained by  proof,  although  he  fails  as  to  the  others.' 

No.  177.    For  an  assault,  etc. — Alleging  special  damage. 

In  the Court. 

Term,  18—. 

State  of  Illinois,  ) 

County  of  .     ^  set.     A.  B.,  plaintiff,  by  E.  F.,  his  attorney,  complains 

of  C.  D.,  defendant,  of  a  plea  of  trespass  :  For  that  the  defendant,  on,  etc., 
with  force  and  arms,  etc.,  in  the  county  aforesaid,  assaulted  the  plaintiff, 
and  then  and  there  violently  seized  and  laid  hold  of  him,  and  pulled  and 
tore  large  quantities  of  hair  from  and  off  the  head  of  the  plaintiff,  and  then 
and  there,  with  a  certain  stick  and  with  his  fists,  gave  and  struck  the 
plaintiff  a  great  many  violent  blows  and  strokes  on  divers  parts  of  his  body; 
and  also  then  and  there,  with  great  force  and  violence,  shook  and  pulled 
about  the  plaintiff,  and  threw  him  down  to  and  upon  the  ground,  and  vio^ 
lently  kicked  the  plaintiff,  and  gave  and  struck  him  a  great  many  other 
blows  and  strokes;  and  also  then  and  there,  with  great  force  and  violence, 
tore  and  damaged  the  clothes,  to  wit,  one  coat,  one  waistcoat,  one  pair  of 

trousers,  one  shirt  and  one  hat,  of  the  plaintiff,  of  the  value  of dollars, 

which  he  then  and  there  wore :  By  means  of  which  several  premises  the 
plaintiff  was  then  and  there  greatly  hurt,  bruised  and  wounded,  and  be- 
came and  was  sick,  sore,  lame  and  disordered,  and  so  remained  for  a  long 
space  of  time,  to  wit,  hitherto;  during  all  which  time  the  plaintiff  thereby 
suffered  great  pain,  and  was  hindered  and  prevented  from  performing  and 
transacting  his  affairs  and  business  by  him  during  that  time  to  be  per- 
formed and  transacted;  and  also  thereby  the  plaintiff  was  obliged  to  and 

did  necessarily  lay  out  divers  sums  of  money,  amounting  to dollars,  in 

and  about  endeavoring  to  be  healed  of  the  said  bruises,  wounds,  sickness, 
soreness,  lameness  and  disorder  so  by  the  defendant  occasioned  as  afore- 
said. 

{Second  count,  for  another  assault,  etc.)  And  also  for  that  the  defendant 
on,  etc.,  with  force  and  arms,  etc.,  in  the  county  aforesaid,  again  assaulted 
the  plaintiff,  and  then  and  there  again  (here  set  forth  the  injuries,  and  the 
consequent  damage,  according  to  the  facts,  in  like  manner  as  in  the  first 
count). 

(Conclusion.)  And  other  wrongs  the  defendant  to  the  plaintiff  then  and 
there  did,  to  the  great  damage  of  the  plaintiff,  and  against  the  peace  of  the 
people  of  this  state.     Wherefore  the  plaintiff  says  that  he  is  injured,  and 

has  sustained  damage  to  the  amount  of dollars,  and  therefore  he  brings 

his  suit,  etc. 

>Chit.  PI.  (11  Am.  Ed.)  301;  JReed  Baker,  19  Pick.  517;  Arnold  v. 
v.  B.  E.  Co.,  18  111.  403;  Bishop  v.      Maudlin,  6  Blackf.  187.  , 


TEE8PASS«  345 

It  is  best  to  allege  only  such  acts  of  trespass  as  can  be  proved; 
an  over-statement,  unsupported  by  evidence,  is  detrimental, 
and  affords  ground  for  ridicule  on  the  part  of  the  defendant's 
counsel.  The  allegations  should  conform  as  nearly  as  may  be 
to  the  facts  of  each  particular  case. 

If  there  have  been  several  assaults,  at  different  times,  for 
which  the  plaintiff  intends  to  proceed,  there  should  be  a  dis- 
tinct count  for  each  assault;  but  otherwise  it  is  not  necessary, 
though  usual,  to  insert  a  count  (like  the  next  form)  for  a  com- 
mon assault,  for  if  the  plaintiff  proves  any  part  of  a  special 
count  he  will  be  entitled  to  a  verdict  ])ro  tanto^  though  he  fails 
to  prove  the  residue.' 

Under  the  allegation  of  "  other  wrongs  "  {alia  enormia), 
damages  and  matters  which  naturally  arise  from  the  act  com- 
plained of,  or  can  not  with  decency  be  stated,  may  be  given 
in  evidence  in  aggravation  of  damages,  though  not  specified 
in  any  other  part  of  the  declaration.  Thus  in  trespass  for 
breaking  and  entering  a  house,  the  plaintiff  may,  in  aggrava- 
tion of  damages,  give  in  evidence  the  debauching  of  his  daugh- 
ter or  the  battery  of  his  servants,  under  the  general  allegation 
of. alia  enormia,^  and  yet  this  matter  may  be  alleged  specially; 
but  he  can  not  under  that  general  allegation  give  in  evidence 
the  loss  of  service,  or  any  other  matter  which  would  of  itself 
bear  an  action.  Therefore  in  trespass  quare  clausum  f regit, 
the  plaintiff  would  not,  under  the  allegation  of  alia  enormia, 
be  permitted  to  give  evidence  of  the  defendant's  taking  away 
a  horse,  etc.;  and  in  the  other  cases,  the  evidence  is  allowed 
to  be  given,  not  as  a  substantive  ground  of  action,  but  merely 
to  show  the  violence  of  the  defendant's  conduct,  and  give  a 
character  to  the  case.' 

No.  178.    For  a  eovimon  assault. 

(Commence  as  in  last  precedent.)  For  that  the  defendant,  on,  etc.,  with 
force  and  arms,  etc.,  in  the  county  aforesaid,  made  an  assault  on  the 
plaintiff,  and  then  and  there  beat,  bruised,  wounded  and  ill-treated  him; 
and  other  wrongs  to  the  plaintiff  then  and  there  did;  against  the  peace  of 

'2  Chit.  PI.  851,  n.  »1   Chit.    PI.    (11    Am.  Ed.),  397; 

«  1  Chit.  PI.  (11  Am.  Ed.),  897;  but      see  Tiiisley  v.  Roice,  17  Bradw.  326. 
see  Peake  Ev.  87(3  Ed.);  2  Phil.  Ev- 
1^4. 


34:6  TRESPASS. 

the  people  of  this  state,  and  to  the  damage  of  the  plaintiff  of dollars, 

and  therefore  he  brings  his  suit,  etc. 

No.  179."  For  an  assault  with  a  pistol,  and  wounding,  etc. 

{Commence  as  in  No.  177,  ante.)  For  that  the  defendant,  on,  etc.,  with 
force  and  arms,  etc.,  in  the  county  aforesaid,  made  an  assault  upon  the 
plaintiff,  and  shot  off  a  certain  pistol,  then  and  there  loaded  with  gunpow- 
der and  leaden  bullets,  at  and  against  the  plaintiff,  and  thereby  then  and 
there  shot  and  wounded  the  plaintiff  in  so  grievous  a  manner  that  his  life 
was  despaired  of;  and  by  reason  of  such  shooting  and  wounding  the  plaintiff 
then  and  there  became  lame,  sick  and  disordered,  and  so  continued  for  a 
long  time,  to  wit,  from  thence  hitherto,  and  was  during  all  that  time 
thereby  rendered  incapable  of  following  and  transacting  his  affairs  and 
business  by  him  during  that  time  to  be  done;  and  also  thereby  the  plaintiff 
was  obliged  to  and  did  necessarily  lay  out  divers  sums  of  money,  amount- 
ing to dollars,  in  and  about  endeavoring  to  be  cured  of  the  wounds, 

sickness,  lameness  and  disorder  aforesaid,  occasioned  as  aforesaid;  and  other 
wrongs  the  defendant  to  the  plaintiff  then  and  there  did,  against  the  peace 

of  the  people  of  this  state  and  to  the  damage  of  the  plaintiff  of dollars, 

and  therefore  he  brings  his  suit,  etc. 

A  count  for  a  common  assault  may  be  inserted,  if  deemed 
expedient,  concluding  the  declaration  as  in  No.  177,  ante. 

No.  ISO.     For  riding  or  driving  against  the  plaintiff . 

{Commence  as  in  No.  177,  ante.)  For  that  the  defendant,  on,  etc.,  with 
force  and  arms,  etc.,  in  the  county  aforesaid,  assaulted  the  plaintiff,  and 
with  great  force  and  violence  rode  (drove)  a  certain  horse  {draiving  a  cer- 
tain carriage)  against,  upon  and  over  the  plaintiff,  and  then  and  there, 
with  the  said  horse  {atid  carriage),  violently  knocked  and  threw  the  plaintiff 
down  to  and  upon  the  ground  there,  and  grievously  hurt,  bruised  and 
wounded  him  {any  particular  serious  injury  may  be  here  alleged),  and  tore 
and  damaged  the  clothes,  to  wit,  one  coat,  one  waistcoat,  one  pair  of  trou- 
sers, one  shirt  and  one  hat  of  the  plaintiff,  of  the  value  of dollars,  which 

he  then  and  there  wore,  and  by  reason  of  such  hurting,  wounding  and 
bruising,  the  plaintiff  then  and  there  became  {proceed  in  like  manner  as  in 
tlie  last  precedent  to  the  end.    See  No.  177,  ante). 

No.  181.     By  husband  and  wife  against  husband  arid  wife,  for  a  battery  of 
one  wife  by  the  other.     \2  Chit.  PI.  854-] 

{Title  of  court,  etc.)  A.  B.  and  C.  D.,  his  wife,  complain  of  E.  F.  and  G. 
H.,  his  wife,  of  a  plea  of  trespass;  for  that  the  said  G.  H.,  on,  etc.,  with 
force  and  arms,  etc.,  assaulted  the  said  C.  D.,  then  and  still  being  the  wife 
of  the  said  A.  B.,  to  wit,  at,  etc.,  and  then  and  there  beat,  bruised,  icounded 
and  ill-treated  her,  so  that  her  life  teas  then  and  there  greatly  despaired  of; 
and  other  wrongs  to  the  said  C.  D.  then  and  there  did;  against  the  peace, 
etc.,  and  to  the  damage  of  the  said  A.  B.  and  C.  D.,  his  wife,  of  dol- 
lars, and  therefore  they  bring  their  suit,  etc. 


TKESPASS.  Sit 

The  acts  of  trespass  are  to  be  described  according  to  the 
facts.  Care  must  be  taken  to  declare  only  for  the  personal 
injury  and  suffering  of  the  wife,  and  not  to  include  any  alle- 
gation of  an  injury  which,  in  point  of  law,  only  affected  the 
husband,  and  not  the  wife.  In  Illinois,  the  husband  need  not 
join  as  plaintiff  in  an  action  for  a  personal  injury  to  the  wife.' 

No.  182.     Common  count  for  a  false  imprisonment. 

{Commence  as  in  No.  177,  ante.)  For  that  the  defendant,  on,  et(^,  with 
force  and  arms,  etc.,  in  the  county  aforesaid,  made  an  assault  upon  the 
plaintiff,  and  beat,  bruised  and  ill-treated  him,  and  then  and  there  impris- 
oned him,  and  detained  him  in  prison  there,  without  any  reasonable  or 

probable  cause  whatsoever,  for  the  space  of hours  then  next  following, 

contrary  to  the  laws  of  this  state,  and  against  the  will  of  the  plaintiff;  and 
other  wrongs  to  the  plaintiff  then  and  there  did;  against  the  peace  of  the 

people  of  this  state,  and  to  the  damage  of  the  plaintiff  of  dollai's,  and 

therefore  he  brings  his  suit,  etc. 

No.  183.    For  an  assault  etc. ,  and  false  imprisonment. 

{Commence  as  in  No.  177,  ante.)  For  that  the  defendant,  on  etc.,  with 
force  and  arms,  etc.,  in  the  county  aforesaid,  assaulted  the  plaintiff,  and 
seized  and  laid  hold  of  him,  and  with  great  violence  pulled  and  dragged 
him  about,  and  gave  and  struck  the  plaintiff  a  great  many  violent  blows 
and  strokes:  and  also  then  and  there  forced  the  plaintiff  to  go  from  out  of  a 

certain  dwelling-house,   in  the  city  of  ,  in  the  county  aforesaid,  into 

the  public  street  there  and  compelled  him  to  go  in  and  along  divei-s  public 
streets,  to  a  certain  police  office  in  the  said  city;  and  also  then  and  there 
imprisoned  the  plaintiff,  and  detained  him  in  prison  there,  without  any  rea- 
sonable or  probable  cause  whatsoever,  for  the  space  of then  next 

following,  contrary  to  the  laws  of  this  state,  and  against  the  will  of  the 
plaintiff;  whereby  the  plaintiff  was  then  and  there  not  only  greatly  hurt, 
bruised  and  wounded,  but  was  exposed  to  public  disgrace,  and  injured  in 
his  credit  and  circumstances;  and  other  wi-ongs  the  defendant  to  him,  the 
plaintiff,  then  and  there  did;   against  the  peace  of  the  people  of  this  state, 

and  to  the  damage  of  the  plaintiff  of dollars,  and  therefore  he  brings 

his  suit.^ 

If  deemed  expedient,  the  common  count  for  a  false  impris- 
onment, and  a  count  for  a  common  assault,  may  be  inserted, 
concluding  the  declaration  as  in  IS^o.  177,  ante. 

iRev.  Stat.  (1893),  806;  Rev.  Stat.  2  gg^  Slomer  v.  People,  25  111.  70; 


(1895),  855;  1  Starr  &  Curtis  1269 
R.  R.  Co.  V.  Dunn,  52  111.  260 
Chestnut  v.  Chestnut,  11  111.  346 
Chicago  v.  McGraw,  75  111.  566. 


Outlaw  V.  Davis,  27  111.  467;  Don- 
nelhj  V.  Harris,  41  lU.  126;  Roth  v. 
Smith,  54  111.  431. 


34S  TKESPASS.  ■ 

In  order  to  sustain  an  action  for  a  false  imprisonment,  it  is 
not  necessary  for  the  plaintiff  to  show  that  the  defendant  used 
violence,  or  laid  hands  on  him,  or  shut  him  up  in  any  jail  or 
prison,  but  it  is  sufficient  to  show  that  the  defendant  in  any 
manner  unlawfully  restrained  the  plaintiff  of  his  liberty,  or 
detained  him  from  going  where  he  wished.' 

One  who  has  counseled,  advised  or  procured  the  false  im- 
prisonment of  another,  is  liable  as  a  principal,  although  he  did 
not  participate  actively  in  the  commission  of  the  act.* 

No.  IS4.    For  debauching  the  plaintiff's  daughter  and  servant. 

{Commence  as  in  No.  177,  ante.)  For  that  the  defendant,  on,  etc.,  with 
force  and  arms,  etc.,  in  the  county  aforesaid,  assaulted,  debauched  and 
carnally  knew  one  E.  B. ,  then  and  from  thence  hitherto  being  the  daughter 
and  servant  of  the  plaintiff;  whereby  the  said  E.  B.  became  pregnant  and 
sick  with  child  {proceed  as  in  the  form  in  case  No.  34I,  post,  and  conclude). 
And  other  wrongs  the  defendant  to  the  plaintiff  then  and  there  did;  against 
the  peace  of  the  people  of  this  state,  and  to  the  damage  of  the  plamtrff  of 
— —  dollars,  and  therefore  he  brings  his  suit,  etc. 

See  the  form  Ko.  S4:l,  post,  and  the  observations  thereunder. 

The  first  count  may  be  for  trespass  in  entering  the  plaint- 
iff's dwelling-house,  and  there  debauching  his  daughter,  with 
a  second  count  as  above.' 

No.  185.    For  criminal  conversation. 

{Commence  as  in  No.  177,  ante.)  For  that  the  defendant,  on,  etc.,  and  on 
divers  other  days  between  that  day  and  the  day  of  commencing  this  suit,  with 
force  and  arms,  etc.,  in  the  county  aforesaid,  assaulted  and  ill-treated  E.  B., 
then  and  still  being  the  wife  of  the  plaintiff,  and  then  and  there  debauched 
and  carnally  knew  her;  whereby  the  plaintiff,  from  the  day  first  aforesaid 
hitherto,  has  lost  and  been  deprived  of  the  comfort,  fellowship  and  aid  of 
his  said  wife,  which  he  ought  to  have  had,  and  otherwise  might  and  would 
have  had,  in  his  domestic  affairs;  and  other  wrongs  the  defendant  to  the 
plaintiff  then  and  there  did;  against  the  peace  of  the  people  of  this  state, 

and  to  the  damage  of  the  plaintiff  of dollars,  and  therefore  he  brings 

tliis  suit,  etc. 

See  the  form  No.  34:0, post,  and  the  observations  thereunder. 

^Hawk  V.    Ridgway,   33  111.  473;  ^  Roth  \.  Smith,  Aim.  ZU. 

see  Newton  v.  LocMin,  77  111.  103;  «2  Chit.  PI.  856,  n. 

seeBac.  Abr.,Tres.,  D,  3;   2  Bouv 
Inst.  589;  1  Chit.  Prac.  47,  48, 


TRESPASS.  349 

No.  1S6.    For  taking  goods— Common  count  de  bonis  asportatis. 

{Commence  as  in  No.  177,  ante.)  For  that  the  defendant,  on,  etc.,  with 
force  and  arms,  etc.,  in  the  county  aforesaid,  seized,  took  and  carried  {or 
"drove,"  or  "  led  " )  away  the  goods  and  chattels,  to  wit,  {here  describe  the 

property.)  of  the  plaintiff,  of  the  value  of  dollars,  and  converted  and 

disposed  of  the  same  to  his  own  use;  and  other  wrongs  to  the  plaintiff  then 
and  there  did;  against  the  peace  of  the  people  of  this  state,  and  to  the 
damage  of  the  plaintiff  of  dollars,  and  therefore  he  brings  his  suit,  etc. 

As  to  the  description  of  the  property,  and  the  allegation  of 
the  value,  and  of  the  plaintiff's  right  of  interest,  see  the  obser- 
vations under  the  head  of  "  The  Declaration,"  ante. 

Where  the  declaration  states  a  case  of  trespass  de  honis  aspor- 
tatis, the  wrongful  seizure  of  goods  and  chattels  described,  is 
the  gist  of  the  action,  the  conversion  of  the  goods  alleged 
being  mere  matter  of  aggravation/ 

No.  1S7.    For  chasing  cattle— Alleging  special  damage. 

{Commence  as  in  No.  177,  ante.)  For  that  the  defendant,  on,  etc.,  and  on 
divers  other  days  between  that  day  and  the  commencement  of  this  suit, 
with  force  and  arms,  etc.,  drove,  chased  and  hurried  the  cows,  oxen  and 

calves,  to  wit, cows, oxen,  and calves,  of  the  plaintiff,  of  the 

value  of  dollars,  then  depasturing  and  being  in  and  upon  a  certain 

waste  or  common  in  the  county  aforesaid,  and  then  and  there  chased  and 
drove  the  said  cows,  oxen  and  calves  from  and  off  the  said  common,  to 
divers  places  to  the  plaintiff  unknown;  whereby  the  plaintiff  was  not  only 
put  to  great  trouble,  and  to  great  expense,  amounting  in  the  whole  to  the 

sum  of dollars,  in  and  about  endeavoring  to  find  his  said  cows,  oxen 

and  calves,  but  also  divers  thereof,  to  wit, cows, oxen  and 

calves,  of  the  value  of dollars,  then  and  there  died;  and  others  thereof 

to  wit, cows, oxen  and calves,  of  the  value  of  dollars, 

then  and  there  became  and  were  wholly  lost  to  the  plaintiff;  and  the  residue 
of  the  said  cows,  oxen  and  calves  then  and  there  became  and  were  greatly 
damaged  and  lessened  in  value;  and  other  wrongs  the  defendant  to  the 
plaintiff  then  and  there  did,  against  the  peace  of  the  people  of  this  state,  and 

to  the  damage  of  the  plaintiff  of dollars,  and  therefore  he  brings  his 

suit,  etc.  2 

No.  18S.    For  chasing  a  mare,  whereby  she  dropped  a  dead  foal. 

{Commence  as  in  No.  177,  ante.)  For  that  the  defendant,  on,  etc.,  with 
force  and  arms,  etc. ,  in  the  county  aforesaid,  drove  and  chased  a  certain 
mare  of  the  plaintiff,  of  the  value  of dollars,  whereby  the  said  mare 

,  >  McGillis  V.  Bishop,  27  111.  App.  »2  Chit.  PL  858. 

53;  Taylor  V.  Co?e,  3  Term  155;  Gel- 
ston  V.  Hoyt,  3  Wheat.  326. 


350  TKESPASS. 

then  and  there  slipped  and  dropped  a  dead  foal;  by  means  whereof  the  said 
mare  was  then  and  there  greatly  hurt  and  damaged,  and  the  plaintitf  was 

deprived  of  the  use  of  the  said  mare  for  the  space  of weeks  then  next 

following;  and  the  defendant  other  wrongs  to  the  plaintiff  then  and  there 
did;  against  the  peace  of  the  people  of  this  state,  and  to  the  damage  of  tlie 
plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc, 

No.  1S9.    For  driving  a  carriage  against  the  plaintiff's,  whereby  he  ims 
thrown  out  and  his  carriage  damaged. 

{Commence  as  in  No.  177,  ante.)  For  that  the  defendant,  on,  etc.,  with 
force  and  arms,  etc.,  in  the  county  aforesaid,  drove  a  certain  carriage  with 
great  force  and  violence  against  a  certain  carriage  of  the  plaintiff,  of  the 

value  of dollars,  in  which  last  mentioned  carriage  the  plaintiff  was 

then  and  there  riding  in  and  along  the  highway  there,  and  thereby  then 
and  there  greatly  broke,  damaged  ahd  spoiled  the  said  carriage  of  the 
plaintiff;  and  by  means  of  the  premises  the  plaintiff  was  then  and  there 
thrown  with  great  violence  out  of  his  said  carriage  to  and  upon  the 
ground;   and  also  by  means  of  the  premises  the  plaintiff  was  thereupon 

obhged  to  expend,  and  did  expend,  the  sum  of dollars,  in  repairing  his 

said  carriage;  and  also  by  means  of  the  premises  the  plaintiff  was  then 
and  there  greatly  bruised,  hurt,  wounded  and  disordered,  and  so  continued 

for  the  space  of days  then  next  following,  and  during  all  that  time 

was  prevented  from  transacting  his,  business  by  him  during  the  said  time  to 
be  transacted,  and  was  also  thereby  obliged  to  expend,  and  did  expend, 

divers  sums  of  money,  amounting  to dollars,  in  tSie  cure  of  his  said 

bruises,  hurts,  wounds  and  disorder,  occasioned  as  aforesaid;  and  the  de- 
fendant other  wrongs  to  the  plaintiff  then  and  there  did;   against  the  peace 

of  the  people  of  this  state,  and  to  the  damage  of  the  plaintiff  of dollars, 

and  therefor  he  brings  his  suit,  etc. 

By  statute  in  Illinois,  the  owner  "  of  any  carriage  running 
upon  any  turnpike  road  or  public  highway,  for  the  convey- 
ance of  passengers,"  is  liable,  in  an  action  of  trespass,  for  any 
injury  or  damage  occasioned  by  the  willful  act  of  the  driver/ 

No.  190.    For  killing  plaintiff's  horse. 

{Commence  as  in  No.  177,  ante.)  For  that  the  defendant  on,  etc. ,  with 
force  and  arms,  etc.,  in  the  county  aforesaid,  beat,  bruised,  wounded  and 

ill  treated  a  certain  gelding  of  the  plaintiff,  of  the  value  of dollars,  so 

that  the  said  gelding  languished  of  the  said  bruises  and  wounds  then  and 

there  given,  for  the  space  of days  then  next  following,  during  which 

time  the  plaintiff  was  thereby  obliged  to  and  did  lay  out  divers  sums  of 
money,  amounting  to dollars,  in  endeavoring  to  cure  the  said  gelding; 

'  Rev.  Stat.  (1893)  1255;  Rev.  Stat.      277;  see  Johnson  v.  Barber,  5  Gilm. 
(1895)  1345;  2  Starr  &  Curtis'   An       425. 
Stat.  2175;  Tuller  v.    Voght,  13  111. 


TRESPASS.  351 

and  afterward,  to  wit,  on,  etc.,  by  reason  of  the  said  bruises  and  wounds, 
the  said  gelding  there  died;  and  otlier  wrongs  the  defendant  to  the  plaintiff 
then  and  there  did;  against  the  peace  of  the  people  of  this  state,  and  to  the 

damage  of  the  plaintiff  of dollars,  and  therefore  he  brings  his  suit, 

etc. 

No.  191.    Declaration  for  shooting  plaintiff's  dog. 

In  the Court. 


State  op  Illinois,  )  ^^ 


Term,  A.  D.  18—, 


County  of 

A.  B.,  the  plaintiff,  by  E.  F.,  his  attorney,  complains  of  C.  D. .  defendant, 

of  a  plea  of  trespass;    for  that  the  defendant  on,  etc.,  at,  etc.,  with  force 

and  arms,  etc. ,  shot  off  and  discharged  a  certain  gun,  then  and  there  loaded 

with  gunpowder,  and  shot  at  and  against  a  certain  dog  of  the  plaintiff,  of 

great  value,  to  wit,  of  the  value  of  dollars,  and  thereby  and  therewith 

then  and  there  so  greatly  shot,  hurt  and  wounded  the  said  dog,  that  by  reason 

thereof  the  said  dog  being  of  the  value  aforesaid,  afterwards,  to  wit,  on  the 

day  and  year  aforesaid,  died,  to  wit,  at.  etc.,  aforesaid;  and  other  wrongs 

to  the  plaintiff  then  and  there  did,  against  the  peace  of  the  people  of  this 

state,  and  to  the  damage  of  the  plaintiff  of dollars ;  and  therefore  he 

brings  suit,  etc, 

ByE.  F.,  Att'y  forPrff. 

No.  192.    Against  a  constable,  on  the  statute,^  for  double  value,  for  taking 
exempted  property  in  execution. 

{Commence  as  in  No.  177,  ante.)  For  that  before  and  at  the  time  of  the 
issuing  of  the  ^Tit  hereinafter  mentioned,  and  from  thence  imtil  and  at  the 
time  of  the  committing  of  the  grievances  by  the  defendant  as  hereinafter 
mentioned,  the  plaintiff  was  the  head  of  a  family,  and  residing  with  the 
same,  and  at  the  time  last  mentioned  was  the  owner  of  two  horses,  worth 
not  exceeding  two  hundred  and  fifty  dollars,  that  is  to  say,  of  the  value  of 

dollars,  and  was  not  the  owner  of  any  other  horses,  or  of  any  oxen,  to 

wit,  in  the  county  aforesaid;  by  reason  whereof,  and  by  force  of  the  statute 
in  such  case  made  and  provided,  the  said  horses  of  the  plaintiff  were  then 
and  there  exempt  from  execution;  and  on,  etc.,  the  defendant,  then  being 
one  of  the  constables  in  and  for  the  county  aforesaid,  not  regarding  the 
said  statute,  with  force  and  arms,  etc.,  there  took  and  seized  tlfe  said  horses 
of  the  plaintiff,  by  virtue  of  a  certain  writ  of  execution  before  that  time, 
to  wit,  on,  etc.,  sued  forth  against  the  goods  and  chattels  of  the  plaintiff  by 
one  J.  K.  before  one  L.  M.,  then  one  of  the  justices  of  the  peace  in  and  for 
the  county  aforesaid:  which  said  writ  was  not  issued  in  any  action  to  re- 
cover the  purchase-money  for  the  said  horses:  Against  the  peace  of  the 
people  of  this  state,  and  to  the  great  damage  of  the  plaintiff,  and  against 
the  form  of  the  statute  aforesaid.' 

J  Rev.  Stat.  (1893),  727;  Rev.  Stat.  ^See   Cook  v.  Scoff,   1  Gilm.  33.3; 

(1895),  775;  1  Starr  &  Curtis  1114;  Pace  v.  Vaughn,  1  Gilm.  CU;  Ilccker 
see  Figuera  v.  Pyatt,  88  111.  403.  v.  Grewe,  125  111.  58. 


352  TKESPASS. 

(Second  count  at  common  law,  for  taking  chattels.)  And  also  for  that 
the  defendant,  on,  etc.,  with  force  and  arms,  etc.,  in  the  county  aforesaid, 
seized,  took,  drove  and  led  away  other  the  goods  and  chattels,  to  wit,  two 

other  horses,  of  the  plaintiff,  of  the  value  of dollars,  and  converted  and 

disposed  of  the  same  to  his  own  use;  and  other  wrongs  to  the  plaintiff  then 
and  there  did;  to  the  great  damage  of  the  plaintiff,  and  against  the  peace 
of  the  people  of  this  state. 

{Conchtf>ion.)    Wherefore  the  plaintiff  says  that  he  is  injured,  and  has 

sustained  damage  to  the  amovmt  of dollars,  aud  therefore  he  brings 

his  suit,  etc. 

If  the  plaintiff  declares  in  the  common  form  of  a  declaration 
in  trespass,  without  any  reference  to  the  statute,  he  can  only 
recover  simple  damages  for  the  trespass.  If  he  desires  to  claim 
the  penalty,  he  should  declare  specially  on  the  statute.^ 

No.  193.    For  trespass  in  dwelling-house,  breaking  open  doors,  and  seizing 

goods  therein. 

[Commence  as  in  No.  177,  ante.)  For  that  the  defendant,  on,  etc.,  with 
force  and  arms,  etc.,  broke  and  entered  a  certain  dwelling-house  of  the 
plaintiff,  situate  in  the  county  aforesaid,  and  made  a  great  noise  and  dis- 
tiu^bance  in  the  said  dwelling-house,  and   stayed  and  continued  therein. 

making  such  noise  and  disturbance,  for  the  space  of days  then  next 

following,  and  then  and  there  forced  and  broke  open,  broke  to  pieces  and 

damaged doors  of  the  plaintiff,  belonging  to  the  said  dwelling-house, 

with  the  appurtenances,  and  broke  to  pieces,  damaged  and  spoiled 

locks, staples  and hinges,  of  and  belonging  to  the  said  doors 

respectively,  and  wherewith  the  same  were  then  fastened,  of  the  value  of 

dollars;  and  also,  during  the  time  aforesaid,  to  wit,  on,  etc.,  with 

force  and  arms,  etc.,  seized  and  took  divers  goods  and  chattels,  to  wit  (de- 
scribe the  goods),  of  the  plaintiff,  then  found  and  being  in  the  said  dwelling- 
house,  and  being  of  the  value  of dollars,  and  carried  away  the  same, 

and  converted  and  disposed  thereof  to  his  own  use,  to  wit,  in  the  county 
aforesaid;  by  means  of  which  several  premises  the  plaintiff  and  his  family 
were,  during  all  the  time  aforesaid,  not  only  gi-eatly  annoyed  and  disturbed 
in  the  peaceable  possession  of  his  said  dwelling-house,  but  also  the  plaintiff 
was  during  all  that  time  hindered  and  prevented  from  carrying  on  and 
transacting  therein  his  necessary  affairs  and  business.  (A  cotint  may  be 
added  for  an  expulsion,  as  below,  if  applicable  to  tlie  facts,  and  also  a  count 
de  bonis  asportatis,  for  ichich  see  No.  186,  ante — concluding  the  declaration 
as  in  No.  177,  ante.) 

The  above  declaration  in  substance  charges  the  defendant 
^  Pace  V.  Vaughn,  1  Gilm.  30;  see  Chipman  v.  Emeric,  5  Cal.  239. 


TRESPASS.  353 

with  breaking  open  an  outer  door,  and  if  he  pleads  a  justifica- 
tion, it  must  be  framed  accordingly.' 

No.  194.     Count  for  a  common  expulsion. 

And  also  for  that  the  defendant,  on,  etc.,  with  force  and  arms,  etc.,  broke 
and  entered  a  certain  other  dweUing  house  of  tlie  plaintiff,  situate  in  the 
county  aforesaid,  and  then  and  there  expelled  and  amoved  the  plaintiff  and 
his  family  from  the  possession,  use,  occupation  and  enjoyment  of  the  last 
mentioned  dwelling-house,  and  kept  and  continued  them  so  expelled  and 
amoved  for  a  long  space  of  time,  to  wit,  from  thence  hitherto;  whereby 
the  plaintiff,  during  all  that  time,  lost  and  was  deprived  of  the  use  and 
benefit  of  his  last  mentioned  dwelling-house. 

No.  195.     For  trespass  to  land — Entering  close,  breaking  open  gates,  de- 
stroying crops,  etc. 

{Commence  as  in  No.  177,  ante.)  For  that  the  defendant  on,  etc.,  and  on 
divers  other  days  between  that  day  and  the  commencement  of  this  suit, 
with  force  and  arms,  etc.,  broke  and  entered  a  certain  close  of  the  plaintiff, 
situate  in  the  county  aforesaid,  and  then  and  there  forced  and  broke  open, 

broke  to  pieces,  damaged  and  spoiled gates  of  the  plaintiff,  of  the  value 

of dollars,  then  standing  and  being  in  the  said  close,  and locks,' 

staples  and hinges  of  the  plaintiff,  of  the  value  of dollars, 

respectively  affixed  to  the  said  gates,  and  with  which  the  same  were  then 
respectively  locked  and  fastened;  and  with  feet  in  walking  trod  down  and 

spoiled  the  grass  and  corn  of  the  plaintiff,  of  the  value  of dollars,  then 

and  there  growing  and  being;  and  with  horses,  cows,  oxen  and  sheep,  de- 
pastured and  consumed  the  grass  and  corn  of  the  plaintiff,  of  the  value  of 

dollars,  then  growing  and  being  in  the  said  close;  and  with  divers 

other  horses,  cows,  oxen  and  sheep,  and  also  with  the  wheels  of  divers 
carts,  wagons  and  other  carriages,  crushed,  damaged  and  spoiled  other  the 

grass  and  corn  of  the  plaintiff,  of  the  value  of dollars,  then  and  there 

also  growing  and  being;  and  with  the  feet  of  the  said  horses,  and  with  the 
wheels  of  the  said  carts,  wagons  and  other  carriages,  tore  up,  damaged  and 
spoiled  the  earth  and  soil  of  the  said  close;  and  also  then  and  there  mowed 
and    cut    down    the  grass    and    corn  of  the  plaintiff,   then  growing    in 

the  said  close,  and  seized,  took  and  carried  away wagon-loads   of 

hay  and wagon-loads  of  corn  of  the  plaintiff,  of  the  value  of dol- 
lars off  and  from  the  said  close,  and  converted  and  disposed  of  the  same 

to  his  own  use,  and  also  then  and  there  cut  down  and  destroyed oaks, 

ash  trees, elms,   etc.,  (according  to  the  fact,)  and other  ti-ees, 

and acres  of  underwood,  of  the  plaintiff,  of  the  value  of dollars; 

and  the  timber,  wood,  branches  and  bushes  thereof  coming  and  arising,  to- 

wit, wagon-loads  of  timber, wagon-loads  of  wood,  —  wagon- loads 

of  branches  and wagon-loads  of  bushes,  of  the  plaintiff,  of  the  value  of 

dollars,  took   and  carried  away,  and  converted  and  disposed  of  the 

'2  Chit.  PI.  864,  n.;  Buckenham  v.  Francis,  11  Moore,  40. 
23 


354  TRESPASS. 

same  to  his  own  use;  and  also  then  and  there  placed  and  erected,  and  caused 
to  be  placed  and  erected,  divers  sheds  and  stables  in  and  upon  the  said  close, 
and  kept  and  continued  the  said  sheds  and  stables,  so  there  placed  and 
erected,  without  the  leave  or  license,  and  against  the  will  of  the  plaintiff, 
from,  etc. ,  hitherto;  and  thereby  and  therewith,  during  all  the  time  aforesaid, 
greatly  incumbered  tlie  said  close,  and  hindered  and  prevented  the  plaintiff 
from  having  the  use,  benefit  and  enjoyment  thereof  in  so  large  and  ample 
a  manner  as  he  might  and  otherwise  would  have  done.  {See  note  at  end  of 
No.  193,  ante.) 

A  declaration  in  trespass  qimre  dausumf regit  vcciX'&i  set  forth 
a  trespass  committed  to  real  property  in  the  count}^  where  the 
action  is  brought.  It  is  sufficient  to  describe  the  close  or 
house  generally,  as  in  the  above  precedents; '  but  if  the  descri]> 
tion  is  general,  and  the  defendant  pleads  liberiun  tenement wtn., 
the  plaintiff  must  make  a  new  assignment;  and  to  avoid  this 
necessity  it  may  sometimes  be  advisable  to  give  a  precise  de- 
scription of  the  property  in  the  declaration,  "When  this  is 
done,  care  should  be  taken  to  avoid  any  mistake  in  the  descrip- 
tion.^ 

While  the  action  of  trespass  quare  clausum /regit  does  not 
necessarily  involve  the  title  or  seizin,  yet  the  gist  of  the 
action  is  the  injury  to  the  possession.  Hence,  the  judgment  in 
such  action  will  ordinarily  be  conclusive  upon  the  right  of  pos- 
session.^ 

No.  196.    For  cutting  down  and  carrying  away  trees,  etc. 

(Commence  as  in  No.  177,  ante.)  For  that  the  defendant,  on,  etc.,  and 
on  divers  other  days  and  times  between  that  day  and  the  commencement 
of  this  suit,  with  force  and  arms,  etc.,  in  the  county  aforesaid,  felled,  cut 

and  destroyed  the  trees  and  saplings,  to  wit, oaks, ash  trees, 

elms, other  trees,  and  saplings,  of  the  plaintiff,  of  the  value  of 

dollars,  then  growing  and  being  in  and  upon  certain  lands  there  situate, 

and  took  and  carried  away  the  said  trees  and  saplings,  and  converted  and 
disposed  of  the  same  to  his  own  use;  and  other  wrongs  to  the  plaintiff  then 
and  there  did,  against  the  peace  of  the  people  of  this  state,  and  to  the  dam- 
age of  the  plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc. 

A  count  may  be  inserted  for  carrying  away  trees  generally. 
The  above  count — not  alleging  any  trespass  on  the  close — is 

1  2  Chit.  PI.  863,  n.  '  Ibid.;  Elsonw.  Comstock,  150111. 

2  01.  Prec.  564;  2  Chit.  PL  868;  see      303. 
Meixsell  v.  Feezor,  43  111.  App.  180. 


TKESPASS.  355 

proper  where  the  land  has  been  demised,  and  the  trees  were 
excepted  in  the  lease. 

Possession  of  a  farm  draws  with  it  possession  of  the  adjoin- 
ing woodland,  though  uninclosed.' 

No.  197.    For  digging  in  a  coal  mine,  and  carrying  aicay  coal  therefrom. 

{Commence  as  in  No.  177,  ante.)  For  that  the  defendant,  on,  etc.,  with 
force  and  arms,  etc.,  broke  and  entered  a  certain  coal  mine  or  vein  of  coal 
of  the  plaintiff,  situate,  etc,  and  dug  out  of  the  said  coal  mine  or  vein  of 

coal  divers  large  quantities  of  coal,  to  wit, tons  of  coal,  of  the  plaintiff, 

of  the  value  of dollars,  and  took  and  carried  away  the  same,  and  eon- 
verted  and  disposed  of  the  same  to  his  own  use.  (Conclude  as  in  the  last 
jjrecedent;  or  a  count  de  bonis  asportatis  may  be  added,  with  conclusion  as 
in  No.  177,  ante.) 

No.  198.    For  digging  mines,  raising  ore,  and  taking  and  converting  it. 

(Commence  as  in  No.  177,  ante.)  For  that  the  defendant,  on,  etc.,  with 
force  and  arms,  etc.,  broke  and  entered  the  close  of  the  plaintiff,  in  the 
county  aforesaid,  and  then  and  there,  with  shovels,  pick-axes  and  other 

instruments,  dug  up,  turned  and  subverted  the  earth  and  soil,  to  wit, 

acres  of  earth  and  soil,  of  the  said  close  of  the  plaintiff;  and  then  and  there 

dug,  made  and  sank  divers  mines,  pits,  shafts  and  holes,  to  wit, mines, 

pits, shafts  and holes,  of  great  breadth  and  depth,  to  wit, 

each  of  the  breadth  of feet,  and  of  the  depth  of feet  in  the  said 

close  of  the  plaintiff  there;  and  from  and  out  of  the  said  mines,  pits, 
shafts  and  holes,  then  and  there  raised,  dug  and  got  divers  large  quantities 
of  earth,  soil,  stones,  lead  ore,  copper  ore,  and  other  ore  of  the  plaintiff,  to 

wit,  etc.,  of  the  value  of dollars;  and  the  same  so  raised,  dug  and  got, 

did  then  and  there  seize,  take,  carry  away  and  convert  to  his  own  use. 
(See  note  at  end  of  last  precedent.) 

DEFENSES    TO  THE  ACTION. 

For  pleas  in  abatement,  and  observations  thereon,  etc.,  see 
Defenses  to  an  Action,  ante. 

Pleas  in  bar. — In  trespass,  the  general  issue  is  "not  guilty." 
On  this  issue  the  plaintiff  must  prove,  1st,  that  the  property  was 
actuallj^  or  constructively  in  his  possession  at  the  time  of  the 
injury,  and  this  rightfully,  as  against  the  defendant;  and  2d, 
that  the  injury  was  committed  by  the  defendant  with  force; " 
and  the  defendant  may  give  in  evidence  any  matter  tending 

^  Penn   v.   Preston,  2    Rawle  14;  22Greenl.  Ev.,  Sec.  613. 

Buck  V.  Aiken,  1  Wend.  466. 


356  TRESPASS. 

to  disprove  either  of  these  propositions/  Every  defense  which 
admits  the  defendant  to  have  been  7>/'/w?fl^  facie  a  trespasser, 
must  be  specially  ])leaded;  but  any  matters  which  go  to  show 
that  he  never  did  the  acts  comphiined  of,  may  be  given  in  evi- 
dence under  the  general  issue.  Thus,  for  example,  under  this 
issue  it  may  be  proved  that  the  plaintiff  has  no  property  in 
the  goods;  or  that  the  defendant  did  not  take  them;  or  that 
he  did  not  enter  the  plaintiff's  close.'"'  But  if  he  acted  by 
license,  even  from  the  plaintiff,  without  claiming  title  in  him- 
self; ^  or  if  he  would  justify  under  a  custom  to  enter; "  or  under 
a  right  of  wa}^;*  or  if  the  injury  was  occasioned  by.  the  plaint- 
iff's own  negligence,  or  was  done  by  the  defendant  from  any 
other  cause,  short  of  such  extraneous  force  as  deprived  him  of 
all  agency  in  the  act,  it  can  not  be  shown  under  this  issue, 
but  must  be  specially  pleaded.' 

All  matters  in  discharge  or  justification  must  be  specially 
pleaded.^  Thus  a  former  recovery,"  accord  and  satisfaction,' 
the  statute  of  limitations,'"  or  a  license,"  must  be  specially 
pleaded.  So  an  officer  wishing  to  justify  under  legal  process 
must  plead  it  specially.'"  But  where,  in  trespass  for  taking 
goods,  the  defense  is  that  the  goods  were  seized  by  the  defend- 

i2Greenl.  Ev.,  Sec.    625;  1   Chit.  Olson  v.  L>sa/i7,  69  111.  273;  B/anc/i- 

Pl.  (11  Am.  Ed.),  500.  ardv.  Burbank,  16  Bradw.  375. 

2  2  Greenl.  Ev.,  Sec.  625;  1  Chit.  « 1  Chit.  PI.  (11  Am.  Ed.)  506,  507; 
PI.  (11  Am.  Ed.),  500,  501;  2  Hill  on  Hahn  v.  Ritter,  12  111.  80;  Davis  v. 
Torts,  81.  Scott,  1  Blackf.  169;  Coles  v.  Carter, 

3  2  Camp.  378;  1  Peake  67;    Rug-  6  Cow.  691. 

glesv.  Lesure,  24   Pick.  187;  Hill  v.  "  1  Chit.  PI.  (11  Am,  Ed.),  506;  see 

3Iorey,  26  Vt.  178;  2   Hill  on  Torts      Hoss  v.  Nesbitt,  2  Gilni.  252. 

gl_83,  .  '» 1  Chit.  PI.  (11  Am.  Ed.),  506;  see 

*  Waters  v.  Lilly,  4  Pick.  145.  Gebhart  v.  Adams,  23  111.  397. 

5 But  see  Strout  v.  Berry,  7  Mass.  "  1  Chit.  PI.  (11  Am.  Ed.),  491,  502, 

505;    7  Blackf.    373;  2  Taunt.    156; 


ii). 


6  2Greenl.  Ev.,    Sec.  625;  1   Chit.  RngglesY.  Lesure,  24  Pick.  187;  see 

PI.  (11  Am.  Ed.),  501;  2  Camp.  500;  i^lake  v.  Dow,  18  111.  261. 

Pettengill  v.  Lairrence,  20  111.    App.  "  1  Chit.  PI.  (11  Am.  Ed.),  501,  506, 

553  534;  see  Barnes  v.  Barber,  1  Gilm. 

■"And.  Steph.  PI.  235;  Hahn  v.  Rit-  401;  Cook  v.  Miller,  11  111.  610;  Me- 
ter, 12  111.  80;  Briggs  v.  Mason,  31  Vt.  Donald  v.  Wilkie,  13  111.  22;  Tefft  v. 
433;  Jeweffv.  GoodoZe,  19  N.H.  562;  Ashbaugh,  13  111.  602;  Clark  v. 
Beaty  v.  Swarthout,  32  Barb.  293;  Leu-is,  35  111.  417;  Boumian  v.  St. 
Comstock  V.  Oberman,  18  Bradw.  326;  John,  43  111.  337. 


TRESPASS.  357 

ant  as  an  officer,  by  virtue  of  legal  process  against  a  third 
person,  and  that  the  goods  belonged  to  such  third  person,  it 
seems  to  be  unnecessary  to  plead  such  defense  specially,'  as  it 
amounts  only  to  a  denial  of  the  plaintiff's  right. 

Matters  in  mitigation  of  the  wrong  and  damages  may  be 
given  in  evidence  under  the  general  issue.^  And  it  seems 
that  a  variance  in  the  description  of  the  locus  in  quo  is  avail- 
able to  the  defendant  under  this  issue,  as  the  allegation  of 
place,  in  trespass  quare  clausum  f  regit,  is  essentially  descriptive 
of  the  particular  trespass  complained  of.^  But  the  variance, 
to  be  available,  must  be  in  some  essential  part  of  the  descrip- 
tion.* 

The  plea  of  "  not  guilty,"  in  an  action  of  trespass  for  tak- 
ing goods,  operates  only  as  a  denial  of  the  taking;  and  the 
trial  of  an  issue  on  such  plea  determines  nothing  as  to  the  right 
of  property.*  The  general  issue,  in  actions  for  torts,  is  regarded 
as  several,  though  it  may  be  in  form  joint;  °  and  one  defend- 
ant, against  whom  there  is  no  evidence,  may  be  acquitted,  and 
a  verdict  taken  against  the  others;  but  it  is  otherwise  as  to  a 
joint  plea  of  justification,  under  which,  if  it  is  not  supported 
as  to  all  the  defendants,  none  of  them  can  be  protected.' 

No.  109.    Plea — Not  guilty. 

In  the Court. 

Term,  18—. 

CD.) 

ats.   y  Trespass. 

A.  B.  )  And  the  defendant,  by  E.  F.,  his  attorney,  comes  and  defends 
the  force  and  injury,  when,  etc.,  and  says  that  he  is  not  guiltj'  of  the  said 
supposed  trespasses  above  laid  to  his  charge,  or  any  or  either  of  them,  in 
manner  and  form  as  the  plaintiff  has  above  thereof  complained  against  him: 
And  of  this  the  defendant  puts  liimself  upon  the  country,  etc. 

■  Jackson  V.  Hobson,  4  Scam.  411.       13  East  9;  Watford  v.  Antliony,  8 

2  2Greenl.Ev.,  §6:35:  3  Hurl,  and  Bing.  75;  Lethbridge  v.  Winter,  2 
Nor.  276;  Briggs  v.    Mason,  31  Vt.       Bing.  49. 

433;  Collins  v.  Perkins,  31  Vt.  624;  '-  Harris  v.  Mijier,  28  111.  135. 

see  6  Adol.  &  El.  174,  N.  S.  <*  Dormer  v.  Flint,  28  Vt.  (2  Wras.) 

3  2  Greenl.  Ev.,  §  625;  3  Stephen's      527;  2  Hill  on  Torts,  317. 

N.  P.  2642;  lOLaw  Jour.  203;  1  Salk.  ''2  Hill  on   Torts,    317;    Drake  v. 

452;  1  Moore,  161;  8  Taunt.  539.  Barryman,  14  Johns.  166;    Gleason 

*  Id.;  1  Taunt.  495;  see  Doe  v.  Salter      v.  Edmunds,  2  Scam.  448. 


358  TRESPASS. 

No.  200.    Plea  of  son  assault  demesne. 

{Firat  plea,  not  guilty,  as  ante,  last  precedent.)  And  for  a  further  plea  in 
this  behalf,  the  defendant  says  that  the  plaintiff  ought  not  to  have  his  afore- 
said action  against  him,  the  defendant,  because  he  says,  (*)  that  the  plaintiff 
just  before  the  said  time  when,  etc.,  to  wit,  on  the  same  day  in  the  said  dec- 
laration mentioned,  with  force  and  arms,  etc. ,  in  the  county  aforesaid,  made 
an  assault  uj)on  the  defendant,  and  would  then  and  there  have  beaten, 
bruised  and  ill-treated  him,  if  he  had  not  immediately  defended  himself 
against  the  plaintiff;  wherefore  the  defendant  did  then  and  there  defend 
himself  against  the  plaintiff,  as  he  lawfully  might  for  the  cause  aforesaid, 
and  in  so  doing  did  commit  the  supposed  trespasses  in  the  said  declaration 
mentioned:  And  so  the  defendant  says,  that  if  any  hurt  or  damage  then 
and  there  happened  to  the  plaintiff,  the  same  was  occasioned  by  the  said 
assault  so  made  by  the  plaintiff  upon  him,  the  defendant,  and  in  his  neces- 
sary defense  of  himself  against  the  plaintiff.  And  this  the  defendant  is 
ready  to  verify;  wherefore  he  prays  judgment  if  the  plaintiff  ought  to  have 
his  aforesaid  action  against  him,  etc. 

If  some  particular  trespasses  only,  of  several  charf^ed  in  a 
declaration  or  count,  are  intended  to  be  justified,  such  partic- 
ular trespasses  should  be  enumerated,  in  the  manner  indicated 
in  the  plea  next  following.^ 

In  a  plea  of  so7i  assault  dem^esne,  a  wounding  may  be  justified 
in  self-defense,  in  the  above  form;  but  where  the  law  prima 
facie  only  authorizes  an  arrest,  or  touching  a  person,  if  a 
wounding  also  is  attempted  to  be  justified,  the  occasion  thereof 
must  be  specially  alleged — as  in  the  case  of  an  arrest  under 
process,  a  resistance,  or  attempt  to  rescue  must  be  averred.^  In 
defense  of  the  person,  an  assault  and  battery,  etc.,  may  be 
justified;^  but  in  defense  of  the  possession  of  personal  or  real 
property,  the  defendant  must  plead  molliter  maiius  imposuit.^ 
It  seems  clear  that  the  defendant  can  not  in  any  case  justify 
an  actual  heating  and  wounding.^  unless  he  shows  in  his  plea 
that  force  was  used  or  attempted  on  the  part  of  the  plaintiff; 
but  still  he  may  justify  what  in  law  amounts  to  a  hattery,  by 
way  of  molliter  Qnanus  itnposuit} 

'  See  remarks,  ante,  57.      -  Bui.  N.  P.  (7  Ed.)  18;  Dalex.  Wood, 

*  Greene  v.   Jones,  1    Saund.  296.  7  Moore  33. 

297;  Id.,  n.  1;  Weaver  v.  Bush,  8  T.  ■»  1  Salk.  407;  Weaver  v.   Bush,  8 

E.  78;  Gregory  v.  Hill,  8  T.  R.  299.  T.  R.  78;  Cbm.  Dig.  Plead.,  3  M.  15; 

^Cockcraft  v.  Smith,  2  Salk.  649;  Ilellen  v.  Thompson,  32  Vt.  407, 

Cockcraftv.  Smith,  1  Ld.  Raym.  177;  *  Smith  v.  Edge,  6  T.  R.  562;  John- 


TRESPASS.  359 

The  following  is  a  somewhat  different  form  of  the  plea  of 
son  assault  demesne.^ 

No.  201.    Plea  of  son  assault  demesne^De/e/isc  of  child,  etc 

{First  plea,  not  guilty,  as  ante.  No.  199.)  And  for  a  further  plea  in  this 
behalf,  as  to  the  assaulting,  beating,  bruising,  wounding  and  ill-treating  of 
the  plaintiff,  and  as  to  the  tearing,  spoiling  and  damaging  of  the  clothes  of 
the  plaintiff,  {etc.,  enumerating  the  trespasses  charged,  or,  if  it  is  ordy  in- 
tended to  justify  a  part,  then  such  part),  as  in  the  said  declaration  {or 
*'  first  count")  mentioned,  the  defendant  says  that  the  plaintiff  ought  not  to 
have  his  aforesaid  action  against  him,  the  defendant,  because  he  says  that 
the  plaintiff,  just  before  the  said  time  when,  etc.,  to  wit,  on  the  same  day 
in  the  said  declaration  (or  "  first  count")  mentioned,  with  force  and  arms, 
etc.,  in  the  county  aforesaid,  made  an  assault  upon  L.  B.,  then  and  there 
being  the  daughter  of  the  defendant,  and  would  then  and  there  have  beaten, 
bruised  and  ill-treated  her,  the  said  L.  B.,  if  the  defendant  liad  not  immedi- 
ately defended  her,  wherefore  the  defendant  did  then  and  there  defend  the 
said  L.  B. ,  so  being  his  daughter  as  aforesaid,  against  the  plaintiff,  as  he 
lawfully  might  for  the  cause  aforesaid,  and  in  so  doing  did  necessarily  and 
unavoidably  &  little  beat,  bruise,  {etc.,  as  in  the  introductory  part  of  tlie 
plea.)  doing  no  unnecessary  damage  to  the p>laintiff  on  that  occasion;  and  so 
the  defendant  says,  that  if  any  hurt  or  damage  then  and  there  happened  to 
the  plaintiff,  the  same  was  occasioned  by  the  said  assault  so  made  by  the 
plaintiff  upon  the  said  L.  B. ,  and  in  the  necessary  defense  of  her,  the  said  L. 
B.,  against  the  plaintiff;  which  are  the  same  supposed  trespasses  in  the  in- 
troductory part  of  this  plea  mentioned,  etc.  And  tliis  the  defendant  is 
ready  to  verify;  wherefore  he  prays  judgment,  etc. 

See  the  form  next  preceding  this,  and  the  remarks  there- 
under. This  form  may  be  readily  adapted  to  the  case  of  an 
assault  in  defense  of  a  father,  mother,  son,  servant,  or 
master. 

No.  202.    General  replication,  de  injuria,  etc. 

(Similiter  to  general  issue,  if  pleaded  as  ante,  No.  10;  if  not,  entitle  first 
replication  as  in  that  form.)  And  the  plaintiff,  as  to  the  plea  of  the  de- 
fendant by  him  secondly  above  pleaded,  says  that  he,  the  plaintiff,  by  rea- 
son of  anything  in  that  plea  alleged,  ought  not  to  be  barred  from  having 
his  aforesaid  action,  (*)  because  he  says,  that  the  defendant,  at  tlie  said 
time  when,  etc.,  of  his  own  wrong,  and  without  the  cause  by  him  in  his 
said  second  plea  alleged,  committed  the  said  several  trespasses  in  that  plea 
mentioned,  in  manner    and  form   as    the  plamtiff  has   above  complained 

son  V.   Northu'ood,  7  Taunt.  689;  3  »  See  3  Chit.   PI.  1068-1070,  and 

Chit.  PL  1068,  n.  notes. 


360  TRESPASS. 

against  t!ie  defendant;    And  this  the  plaintiff  prays  may  be  inquired  of  by 
the  country,  etc.^ 

The  above  fomi  will  suffice  in  all  cases  in  tres]jass  where 
this  replication  is  proper,  though  where  replied  to  the  plea  of  son- 
assault  demesne^  a  form  slightly  different  is  used."*  The  general 
replication,  de  injuria  sua,  absque  tali  causa,  is  adapted  to  the  de- 
nial of  matter  of  excuse  or  justification;  and  where  the  excuse  or 
justification  consists  exclusively  of  mere  matter  of  fact,  as 
distinguished  from  matter  oi record,  title,  authority,  etc.,  (which 
involves  matter  of  laio,)  this  replication  is  the  most  appropriate 
mode  of  traversing  it.  When  the  justification  involves  matter 
of  law,  (as  where,  in  an  action  for  assault,  battery  and  false 
imprisonment,  the  defendant  justifies  under  a  vajrias  directed 
to  him  as  sheriff,)  this  general  traverse  would  be  ill;^  but  the 
plaintiff,  in  a  case  like  this,  may  traverse  separately  any  one 
material  point  in  the  plea,  which  point  may  consist  either  of 
the  record,  etc.,  or  of  the  matter  of  mere  fact  pleaded  in  con- 
nection with  it.  For  example,  he  may  traverse  the  capias,  by 
replying  nul  tiel  record;  or  he  may  admit  the  capias,  and  trav- 
erse the  matter  of  mere  fact,  by  alleging  that  the  defendant 
"  of  his  own  wrong,  and  without  the  residue  of  the  cause  in 
the  said  plea  alleged,"  made  the  assault,  etc.  And  when  mat- 
ter of  record,  title,  etc.,  is  alleged,  not  as  the  ground  of  the 
justification,  but  only  as  inducement,  the  general  replication, 
de  injuria,  etc.,  is  good.* 

When  in  fact  the  plaintiff  made  the  first  assault,  in  defense 
of  his  possession,  etc.,  or  whenever,  in  answer  to  the  defend- 
ant's plea  of  son  assault  demesne,  he  relies  upon  new  matter, 
he  should  not  apply  generally,  de  injuria,  etc.,  but  should  al- 
lege such  new  matter,*  otherwise  he  can  not  justify  the  prior 
assault.*  But  it  is  now  held,  that  if  son  assault  demesne  is 
pleaded,  the  plaintiff  may  under  this  general  replication,  show 
that  the  defendant's  battery  of  him  was  excessive,  without 

'  See  1  Chit.  PI.  (11  Am.  Ed.),  604^  "  1  Chit.  PI.  (11   Am.  Ed.),  592;  3 

611;  8  Id,  1203;  8  Swan's  Pr.  770,  n.  Id.  1203,  n.;  Ayres  v.  Kelley,  11  111. 

Gould's  PI,,  cap,  7,  §§26-50.  17;  Fortune  v.   Jones,  30  111.  App. 

?  3  Chit.  PI.  1202.  116. 

3And.  Steph.  PI.  242,  ^Fortune  v.  Jo7ies,  SO  III.    App. 

4  Gould's  PL,  cap,  7,  §§  36-30.  116;  Ayers  v.  Kelley,  11  111.  17. 


TEESPASS.  361 

a  special  replication,  or  new  assignment; '  though  formerly 
it  was  held  otherwise.^ 

New  assignments. — It  is  a  general  rule,  that  where  the 
defendant  has  committed  several  trespasses,  some  of  which 
were  justifiable,  and  others  not,  and  the  action  is  brought  for 
those  trespasses  which  were  not  justifiable,  but  the  defendant 
by  his  plea  answers  only  those  which  were  so,  (he  being  by 
the  rules  of  pleading  allowed  to  suppose  that  the  action  was 
brought  for  the  latter,)  the  plaintiff  should  new  assigii.  Thus 
in  an  action  of  trespass  for  an  assault,  if  there  have  been 
two  assaults,  one  justifiable,  on  the  ground  of  self-defense, 
and  the  other  not,  and  the  declaration  contains  only  one  count, 
for  an  assault,  and  the  defendant  pleads  so7i  assault  demesne^ 
the  plaintiff  should  new  assign  the  illegal  assault.  In  a  new 
assignment,  the  plaintiff  avers  that  he  brought  his  action,  not 
for  the  trespass  in  the  plea  mentioned,  but  for  another  and 
different  trespass,  committed  on  another  and  different  occa- 
sion— or  in  trespass  to  real  property,  in  another  and  different 
place,  etc. 

In  general,  however,  a  new  assignment  is  unnecessary,  and 
the  replication  de  injuria,  etc.,  will  suffice,  when  the  defend- 
ant can  not  prove  all  the  matters  which  constitute  the  sub- 
stance of  his  plea.^  For  the  law  in  respect  to  new  assignments, 
see  1  Chit.  PI.  (11  Am.  Ed.),  624  to  640;  Andrews'  Steph.  PI. 
281;  and  for  forms,  see  3  Chit.  PI.  1213  to  1218;  And.  Steph. 
PI.  283;  and  see  also  a  form  of  new  assignment  to  a  plea  in 
abatement,  ante,  No.  9a,  and  a  form  of  new  assignment  to  a 
plea  of  liherum  teneraentum,  No.  ^Vl,post. 

No.  203.     Plea — Molliter  manus  imposuit,  to  preserve  the  peace — Plaintiff 
and  a  third  person  fighting  together. 

(First  plea,  not  guilty,  as  ante,  No.  199;  second  plea  as  in  No.  200,  ante, 
to  the  asterisk,  and  thence  as  follows:)  that  the  plaintiff  and  one  O.  P.,  at 

»  IChit.   PI.  (11  Am.  Ed.),   627;  1  nett  v.  Appleton,  25  Wend.  371:  see 

Stephen  N.  P.  216;  Ayers  v.  Kelley,  Fortune  v.  Jones,  30  111.  App.  116. 
11  111.  17;  Dale  v.  Erskine,  35  N.  H.  « 1  Chit.  PI.  (11  Am.  Ed.),  593,  and 

503;  Philbrook  v.  Foster,  4  Ind.  442;  cases  cited. 

Fisher  v.    Bridges,   4    Blackf.  518;  ^  Reece  v.  Taylor. 4:  N.  &  M.  470; 

Gaitlier    v.    Bloioers,    11    Md.    536;  Likes  v.    Van  Dike,  11  Ohio  444;  2 

Hanneww.  Edes,  15  Mass.  347;  Ben-  Swan's  Pr.  772,  774,  notes. 


362  TRESPASS. 

the  said  time  when,  etc.,  in  the  county  aforesaid,  were  fighting  together, 
and  striving  with  force  and  arms  to  beat  and  wound  each  other,  against  the 
peace  of  the  people  of  this  state;  whereupon  the  defendant,  being  tlien  and 
there  present,  for  the  preservation  of  the  peace  of  the  said  people,  and  that 
the  plaintiff  and  the  said  O.  P.  might  do  no  hurt  to  each  other,  and  in  order 
to  separate  them,  then  and  there  gently  laid  his  hands  upon  the  plaintiff, 
as  he  lawfully  might  for  the  cause  aforesaid;  which  are  the  same  sup- 
posed trespasses  in  the  said  declaration  mentioned,  and  whereof  the  plaintiff 
has  above  thereof  complained  against  the  defendant.  And  this  the  defend- 
ant is  ready  to  verify,  wherefore  he  prays  judgment,  etc. 

In  trespass  for  a  simple  assault,  a  plea  of  mollUer  manus 
imj)osuit,  in  reasonable  efforts  to  prevent  a  breach  of  the 
peace  by  the  plaintiff's  assault  on  a  third  person,  is  good,  but 
aliter  when  the  declaration  alleges  aggravated  force  on  the 
part  of  the  defendant.^ 

•  This  plea  is  not  a  full  answer  to  a  declaration  charging  an 
assault  and  wounding;  and  if,  Avhen  pleaded  to  such  a  decla- 
ration, issue  is  taken  on  a  plea,  and  found  for  the  defendant, 
judgment  must  be  rendered  for  the  plaintiff,  7io;i  obstante  vere- 
dicto, for  the  plea  leaves  a  part  of  the  declaration  unanswered.'' 
The  plea  in  such  case  should  either  deny  the  beating,  wound- 
ing, etc.,  or  state  facts  and  circumstances  of  resistance,  etc.,  to 
justify  it." 

No.  204.     Plea — moUiter  manus  imposuit,  to  put  plaintiff  out  of  defend- 
ant's divelling  house. 

(First  plea,  not  guilty,  as  ante.  No.  199;  second  plea  as  in  No.  200,  ante,  to 
the  asterisk,  and  tJience  as  follotvs:)  that  the  defendant,  before  and  at  the 
said  time  when,  etc. ,  was  lawfully  possessed  of  a  certain  dwelling  house, 
with  the  appurtenances,  situate  in,  etc. :  and  being  so  possessed  thereof,  the 
plaintiff,  just  before  the  said  time  when,  etc.,  to  wit,  on  the  same  day  in 
the  said  declaration  mentioned,  was  unlawfully  in  the  said  dwelling  house, 
and  with  force  and  arms  making  a  great  noise  and  disturbance  therein, 
and  at  the  said  time  when,  etc. ,  staid  and  continued  therein,  making  such 
noise  and  disturbance,  without  the  leave  or  license,  and  against  the  will,  of 
the  defendant,  and  during  all  that  time  there  greatly  disturbed  and  dis- 
quieted the  defendant  and  his  family  in  the  peaceable  and  quiet  possession 
and  enjoyment  of  his  said  dwelling  house;  and  thereupon  the  defendant 
then  and  there  requested  the  plaintiff  to  cease  making  his  said  noise  and 
disturbance,  and  to  depart  from  and  out  of  the  said  dwelling  hovise;  which 

1  Mellen  v.  Thompson,  32  Vt.  (3  « ^j^-es  v.  Van  Dike,  17  Ohio  456; 
Shaw)  407;  see  8  Chit   PI.  1068,  n.       see  3  Chit.  PI.  1068,  n. 

» 2  Swan's  Pr.  773,  n.  a. 


TRESPASS.  363 

the  plaintiff  then  and  there  wholly  refused  to  do;  whereupon  the  defend- 
ant, in  defense  of  the  possession  of  his  said  dwelling  house,  at  the  said  time 
when,  etc.,  gently  laid  his  hands  upon  the  plaintiff,  in  order  to  remove,  and 
did  then  and  there  remove  the  plaintiff  from  and  out  of  the  said  dwelling 
house,  as  he  lawfully  might  for  the  cause  aforesaid;  (*)  which  are  the  same 
supposed  trespasses  in  the  said  declaration  mentioned,  and  whereof  the 
plaintiff  has  complained  against  the  defendant.  And  this  the  defendant 
is  ready  to  verify;  wherefore  he  prays  judgment,  etc. 

If  there  "was  an  actual  resistance  on  the  part  of  the  plaintiff, 
and  in  consequence  thereof  any  wounding,  or  a  greater  degree 
of  violence  on  the  defendant's  part  than  would  otherwise  have 
been  justifiable,  the  facts  should  be  alleged  accordingly,  which 
may  be  done  by  Inserting,  at  the  asterisk  in  the  above  form, 
the  following  or  a  similar  averment : 

"  And  because  the  plaintiff  then  and  there  resisted  the  defendant  in  that 
behalf,  and  assaulted  him,  and  used  violent  and  menacing  language  and 
gestures  towards  him,  and  would  then  and  there  have  beaten,  bruised  and 
ill-treated  the  defendant  if  he  had  not  immediately  defended  himself 
against  the  plaintiff,  he,  the  defendant,  did  then  and  there  defend  himself 
against  the  plaintiff,  and  in  so  doing  did  necessarily  and  unavoidably  a 
little  beat,  bruise,  wound  {etc.,  according  to  the  facts  and  the  allegations  of 
the  declaration,)  doing  no  unnecessary  damage  to  the  plaintiff  on  that  occa- 
sion; which  are  the  same,"  etc. 

The  plaintiff  may  reply  de  injuria,  etc.,  as  ante,  No.  202. 
See  the  observations  under  that  form  and  No.  201. 

No.  205.    Plea  by  a  school-master,  justifying  a  battery,  etc.    [12  Ohio,  191.] 

{First  plea,  not  guilty,  as  ante,  No.  199;  second  -plea  as  in  No.  200,  ante, 
to  the  asterisk,  and  thence  as  follows:)  that  the  defendant,  at  the  said  time 
when,  etc. ,  was  a  school-master,  teaching  a  certain  school  in  the  county 
aforesaid;  and  the  plaintiff  was  then  a  scholar  in  and  attending  the  said 
school,  and  then  behaved  and  conducted  himself  in  an  improper  and  disor- 
derly manner  in  the  said  school,  and  then  and  there  refused  to  obey  the 
reasonable  and  necessary  rules  prescribed  for  the  government  of  the  said 
school;  wherefore  the  defendant  then  and  there  moderately  chastised  the 
plaintiff  for  his  said  misbehavior,  as  he  lawfully  might  for  the  cause  afore- 
said; which  is  the  same  supposed  assaulting,  etc.,  in  the  said  declaration 
mentioned:  And  this  the  defendant  is  ready  to  verify;  wherefore  he  prajs 
judgment,  etc. 

The  plaintiff  may  reply  de  injuria,  etc.  See  the  observa- 
tions under  Nos.  200  and  201,  ante. 


364  TRESPASS. 

No.  206.  Plea  by  a  justice  of  the  peace — in  an  action  against  him  and 
another — justifying  the  issuing  of  a  capias,  under  which  plaintiff  was 
arrested  and  imprisoned.^ 

(First  plea,  general  issue,  as  ante,  No.  199.)  And  for  a  further  plea  in  this 
behalf,  the  defendant  C.  D.  says  that  the  plaintiff  ought  not  to  have  his 
aforesaid  action  against  him,  the  said  C.  D.,  because  he  says  that  he,  the 
said  C.  D.,  before  and  at  the  said  time  when,  etc.,  was  a  justice  of  the 
peace  in  and  for  the  county  aforesaid;  and  so  being  such  justice,  and  hav- 
ing jurisdiction  of  the  matters  hereinafter  mentioned,  the  defendant  E.  F., 
on,  etc.,  there  made  oath  before  him,  the  said  C.  D.,  as  such  justice 
of  the  peace,  that  the  plaintiff  was  indebted  to  the  said  E.  F.  in  the  sum  of 

dollars,  on  a  promissory  note  bearing  date,  etc.,  and  due  on,  etc.,  for 

the  sum  aforesaid,  and  that  there  was  danger  that  such  demand  would  be 
lost  unless  the  plaintiff  should  be  held  to  bail,  and  stated  the  cause  of  such 
danger,  so  as  to  satisfy  the  said  C.  D.  that  the  plaintiff  had  been  guilty  of 
fraud,  and  that  there  was  good  reason  on  the  part  of  the  said  E.  F.  to  appre- 
hend such  danger;  and  thereupon  the  said  C.  D. ,  as  such  justice  as  aforesaid, 
did  then  and  there  issue  a  certain  writ  of  capias  ad  respondendum,  in 
the  name  of  the  people  of  the  State  of  Illinois,  directed  to  any  constable 
of  the  said  county  to  execute,  commanding  such  constable  to  take 
the  body  of  the  plaintiff,  and  to  bring  him  forthwith  before  the  said  C. 
D.,  as  such  justice  as  aforesaid,  unless  special  bail  should  be  entered, 
and  if  such  special  bail  should  be  entered,  then  to  summon  the  plaintiff 
to  appear  before  the  said  C.  D.,  as  such  justice  as  aforesaid,  at,  etc.,  on, 
etc.,  at  —  o'clock,  —  M.,  to  answer  the  complaint  of  the  said  E.  F.  for  a 
failure  to  pay  him  a  certain  demand,  not  exceeding  two  hundred  dollars, 
and  to  make  due  return  of  the  said  writ  as  the  law  directs,  which  said 
writ  the  said  C.  D. ,  as  such  justice  as  aforesaid,  thereupon,  to  wit,  on  the 
day  first  aforesaid,  there  delivered  to  one  G.  H.,  who  was  then  and  there  a 
constable  of  the  county  aforesaid,  to  be  by  him  executed  according  to  law; 
as  he,  the  said  C.  D. ,  lawfully  might  for  the  cause  aforesaid ;  and  the  said 
G.H.,  as  such  constable  as  aforesaid,  in  obedience  to  the  said  writ,  after- 
wards, to  wit,  on  the  day  aforesaid,  there  gently  laid  his  hands  upon  the 
plaintiff,  and  ai-rested  him,  using  only  necessary  force  in  so  doing,  and  then 
and  there  brought  the  plaintiff  (he  failing  to  enter  special  bail),  before  the 
said  C.  D.,  as  such  justice  as  aforesaid,  at,  etc.,  aforesaid,  for  trial;  where- 
upon the  plaintiff  then  and  there  confessed  a  judgment  for  the  sum  of 

dollars,  in  favor  of  the  said  E.  F.,  and  thereupon  was  then  and  there  re- 
leased from  such  arrest;  which  are  the  same  supposed  trespasses  in  the  said 
declaration  mentioned,  and  whereof  the  plaintiff  has  complained,  etc.  And 
this  the  said  C.  D.  is  ready  to  verify ;  wherefore  he  prays  judgment,  etc. 

No.  207.    Plea  justifying  an  arrest,  as  a  constable,  without  process,  on 
suspicion  of  felony. 

(First  plea,  not  guilty,  as  ante.  No.  109;  second  plea  as  in  No.  200,  ante, 
to  the  asterisk,  and  thence  as  follows :)  that  before  the  said  time  when,  etc., 

'  Outlaw  V.  Davis,  37  lU.  469. 


TRESPASS.                                                          365 
to  wit,  on,  etc.,  in  the  county  aforesaid,  five  icafches,  of  the  value  of 


dollars,  the  property  of  one  J.  K. ,  were  feloniously  stolen,  taken  and 
carried  away  from  and  out  of  the  possession  of  the  said  J.  K. ;  and  shortly 
afterwards,  to  wit,  at  the  said  time  when,  etc.,  the  defendant  had  reason- 
able and  probable  cause  to  suspect,  and  did  suspect,  that  the  plaintiff  had 
feloniously  stolen  and  carried  away  the  said  icatches,  in  this,  to  wit,  that 
the  plaintiff  was  then  and  there  found  lurking  about,  in  a  suspicious  man- 
ner, near  the  shop  whence  the  said  watches  were  so  stolen  and  carried 
away,  shortly  after  the  same  were  so  stolen  and  carried  away  as  aforesaid; 
and  also  in  this,  to  wit,  that  upon  the  plaintiffs  being  then  and  there 
searched,  one  loatch,  resembling  one  of  the  said  u-atches  so  stolen  and  car- 
ried away  from  the  said  J.  K.  as  aforesaid,  was  then  and  there  found  in 
the  possession  and  on  the  person  of  the  plaintiff,  which  said  loatch,  so  found 
in  the  possession  and  on  the  person  of  the  plaintiff,  the  defendant  then  and 
there  had  reasonable  and  probable  cause  to  suspect  and  believe,  and  did 
suspect  and  believe,  to  be  one  of  the  said  ivatches  so  stolen  and  carried 
away  from  the  said  J.  K.  as  aforesaid  ;  whereupon,  it  being  then  necessary 
that  the  plaintiff  should  be  arrested,  in  order  to  prevent  his  escape,  the  de- 
fendant, who  was  then  one  of  the  constables  in  and  for  tlie  county  aforesaid, 
for  the  causes  aforesaid  then  and  there  gently  laid  his  hands  on  the  plaintiff, 
and  took  and  arrested  him,  and  conveyed  him  (*)  before  one  L.  M.,  then 
one  of  the  justices  of  the  peace  in  and  for  the  county  aforesaid,  to  be  ex- 
amined by  and  before  the  said  justice  touching  the  said  larceny,  and  to  be 
further  dealt  with  according  to  law ;  and  thereupon  the  plaintiff  was  then 

and   there    detained  by  order  of    the  said  justice,  until  the day  of 

,  in  the  year  aforesaid;  on  which  day  the  plaintiff  was  there  examined 

by  and  before  the  said  L.  M.,  then  still  being  such  justice  as  aforesaid, 
touching  the  said  larceny,  and  was  thereupon  by  the  said  justice  then  and 
there  discharged  out  of  custody ;  and  by  means  of  the  several  premises  the 
plaintiff  was  kept  and  detained  in  prison  for  the  space  of  time  in  the  said 
declaration  mentioned,  the  same  being  a  reasonable  imprisonment,  and 
lawful  and  just,  for  the  cause  aforesaid:  which  are  the  same  supposed  tres- 
passes in  the  said  declaration  mentioned,  etc.  And  this  the  defendant  is 
readj^  to  verify;  wherefore  he  prays  judgment,  etc. 

No.  208.    Another  form  of  plea  hy  an  officer,  justifying  an  arrest  without 
process,  on  suspicion  of  felony.^ 

{First  plea,  not  guilty,  as  ante.  No.  199;  second  jilea,  as  in  No.  200,  ante, 
to  the  asterisk,  and  thence  as  foHoivs  :)  that  shortly  before  the  said  time 
when,  etc.,  to  wit,  on,  etc.,  in  the  county  aforesaid,  one  horse,  of    the 

value  of dollars,  the  property  of  one  O.  P..  was  feloniously  stolen, 

taken  and  carried  away;  and  before  and  at  the  said  time  of  the  committing 
of  the  said  larceny,  the  plaintiff  was  an  idle  person,  dwelling  and  staying 
in  the  neighborhood  where  the  said  larceny  was  committed,  and  consort- 
ing with  divers  persons  of  known  bad  character  and  repute;  and  after  the 
committing  of  the  said  larceny,  and  before  the  said  time  when,  etc.,  the 

1  Dodds  V.  Board,  43  111.  95;  Kindred  v.  Stitt,  51  111.  401. 


366  TKESPASS. 

defendant  was  informed  that  the  plaintiff  feloniously  aided  and  abetted  in 
the  committing  of  the  said  larceny;  by  reason  of  which  premises  the  de- 
fendant, at  the  said  time,  when,  etc.,  had  good  and  probable  cause  to  sus- 
pect, and  did  strongly  suspect,  the  plaintiff  to  have  been  guilty  of,  or  con- 
cerned in,  the  committing  of  the  said  larceny;  wherefore  the  defendant, 
who  was  then  a  constable  of  the  county  aforesaid,  then  and  there  gently 
laid  his  hands  on  the  plaintiff,  and  arrested  him,  there  then  being  danger 
that  he  would  otherwise  escape,  and  conveyed  him,  etc.,  (proceeding  in  like 
manner  as  in  the  last  precedent,  from  the  asterisk  to  the  end.) 

See  the  remarks  under  the  replication  de  injuria,  etc.,  No. 
202,  ante. 

A  peace  officer  will  be  justified  in  making  an  arrest,  in  his 
own  county,'  without  warrant,  when  all  the  facts  show  that 
there  was  strong  probable  cause  to  believe  that  the  accused 
was  guilty,  and  there  was  danger  of  his  escape."  In  case  of 
felony  actually  committed,  a  constable  may,  upon  probable 
suspicion,  arrest  the  person  suspected;  but  if  the  suspicion  does 
not  arise  in  the  officer's  own  mind,  he  should  inquire  scrupu- 
lously into  the  causes  of  the  suspicion;  and  he  will  be  justified 
in  making  the  arrest,  should  it  afterwards  appear  that  no  fel- 
ony had  been  committed,  provided  he  had  reasonable  grounds 
to  suspect  the  person  arrested — such  grounds  as  should  influ- 
ence a  prudent  and  cautious  man  under  the  circumstances.  A 
constable,  having  reasonable  ground  to  suspect  that  a  felony 
has  been  committed,  is  authorized  to  detain  the  suspected  per- 
son until  inquiry  can  be  made  by  the  proper  authorities;  and 
whether  or  not  there  was  such  reasonable  ground  for  suspicion, 
is  a  mixed  question  of  law  and  fact — the  circumstances  to 
show  it  reasonable  being  the  fact,  but  whether,  admitting  them 
to  be  truly  alleged,  the  circumstances  amount  to  a  justifica- 
tion, being  a  question  of  law.'  In  a  plea  justifying  the  appre- 
hension of  the  plaintiff  on  suspicion  of  felony,  the  cause  of 
suspicion  must  be  shown.* 

'  Kindred  y.  Stitt,  51  111,  401;  see  1   Hill  on  Torts,  195,  a;    Rohan  v. 

Bessler  v.  Peats,  86  111.  275;  Blaloek  Sau  in,  5  Cush.  281;  Davis  v.  Russell 

V.  Randall,  76  111.  224.  5  Bing.  354. 

2  Dodds  V.  Board,  43  111.  95.  •"  4  Taunt.  34;  Holt  C.  N.  P.  478;  3, 

^  Kindred  Y.  Stitt,  51  111.  401;  see  Chit.  PI.  1081,  n. 


TRESPASS.  367 

No.  209.    Plea  justifying  an  arrest,  etc.,  by  a  private  person,  on  a  charge 

of  felony. 

(First  plea,  not  guilty,  as  ante,  No.  199;  second  plea  as  in  No.  200,  ante, 
to  the  asterisk,  and  thence  as  follows  :)  that  the  plaintiff,  before  the  said 
time  when,  etc. ,  to  wit,  on,  etc. ,  in  the  county  aforesaid,  fen  bank  bills, 
each  of  the  denomination  and  value  of dollars,  the  propei'ty  of  the  de- 
fendant, feloniously  did  steal,  take  and  carry  away;  and  thereupon  the  de- 
fendant, immediately  after  the  committing  of  the  said  larceny,  to  wit,  at  the 
said  time  when,  etc.,  for  the  cause  aforesaid,  and  to  prevent  the  escape  of 
the  plaintiff,  who  was  then  and  there  endeavoring  to  escape,  there  gently 
laid  hands  on  the  plaintiff,  and  gave  him  in  charge  to  one  J.  K.,  then  being 
one  of  the  constables  in  and  for  the  county  aforesaid;  and  on  that  occasion 
the  said  J.  K.  (so  being  such  constable),  at  the  request  of  the  defendant, 
then  and  there  took  the  plaintiff  into  custody,  and  conveyed  him  before  one 
L.  M.,  then  being  one  of  the  justices  of  the  peace  in  and  for  the  county 
aforesaid,  to  be  examined  before  the  said  justice  touching  the  said  larceny, 
and  to  be  further  dealt  with  according  to  law;  and  by  means  of  the  prem- 
ises the  plaintiff  was  imprisoned,  and  detained  in  prison,  for  the  space  of 
time  in  the  said  declaration  mentioned,  the  same  being  a  reasonable  im- 
prisonment, and  lawful  and  just  for  the  cause  aforesaid,  which  are  the  same 
supposed  trespasses  in  the  said  declaration  mentioned,  etc.  And  this  the 
defendant  is  ready  to  verify;  wherefore  he  prays  judgment,  etc. 

See  the  observations  under  the  replication  de  i7}jiiria,  etc., 
No.  202,  ante. 

When  the  magistrate  has  full  possession  of  the  charge,  the 
party  laying  it,  in  general,  ceases  to  be  an  actor  in  the  matter, 
and  need  not  justify  acts  done  subsequently.'  A  private  indi- 
vidual may  arrest  a  person  guilty  of  crime,  when  it  is  necessary 
to  prevent  the  escape  of  the  accused,  and  have  him  taken  be- 
fore a  proper  officer  for  examination.  But  such  private  indi- 
vidual can  not  justify  such  arrest  on  the  ground  of  a  suspicion 
of  guilt  only;  guilt  in  such  case  must  be  shovvn.^  There  is, 
however,  some  conflict  of  authorities  on  this  point.  See  prece- 
dents of  pleas  by  private  individuals,  justifying  arrests  on 
suspicion  of  felony.^ 

No.  210.    Plea  by  a  sheriff,  justifying  the  taking  of  goods,  etc.,  under  a 

fieri  facias. 

(First  plea,  not  guilty,  as  ante.  No.  199;  second  plea  as  in  No.  200,  ante, 
to  the  asterisk,  and  thence  as  follows  : )  that  one  J.  K.,  before  the  said  time 

1 3  Chit  PI.  1080,  n.  » 3  Chit.  PI.  1081;  2  Swan's  Pr.  780. 

2  Dodds  V.  Board,  43  HI.  95;  Kin- 
dred V.  Stitt,  51  lU.  401. 


368  TRESPASS. 

when,  etc.,  to  wit,  on,  etc.,  sued  out  of  the court  of  tlie  said  county  of 

a  certain  writ  of  fieri  facias,  of  that  date,  directed  to  the  sheriff  of  the 

county  aforesaid,  by  which  said  writ  the  people  of  the  State  of  Illinois  com- 
manded such  sheriff  that  of  the  goods  and  chattels,  lands  and  tenements,  in 
his  county,  of  the  plaintiff,  such  sheriff  should  cause  to  be  made  the  sum  of 

dollars,  damages,  and  the  sum  of dollars,  costs  of  suit,  which  by 

the    consideration    of  the    same    court,  on,    etc.,    in  the term,  etc., 

the  said  J.  K.  recovered  against  the  plaintiff,  together  with  interest  thereon 
at  the  rate  of  five  per  centum  per  annum  from  the  time  of  the  recovery  of 

the  same  as  aforesaid,  and  also  the  further  sum  of accruing  costs 

on  the  said  judgment,  and  that  such  sheriff  should  have  those  moneys  ready 
to  render  to  the  said  J.  K.,  according  to  law,  and  sliould  make  return  of  the 
said  writ  in  ninety  days  after  the  said  date  thereof;  which  said  writ  after- 
wards, and  before  the  said  time  when,  etc.,  to  wit,  on  the  said  day  of  the  date 
thereof,  was  there  delivered  to  the  defendant,  who  then  and  from  thence- 
forth until  and  at  and  after  the  said  time  when,  etc.,  was  sheriff  of  the 
county  aforesaid,  to  be  executed  in  due  form  of  law;  (*)  by  virtue  of  which 
said  writ  the  defendant,  as  such  sheriff  as  aforesaid,  afterwards,  and  before 
the  return  day  of  the  said  writ,  to  wit,  at  the  said  time  when,  etc. ,  [peaceably 
and  quietly  entered  into  the  said  dwelling  house  in  which,  etc.,  (the  outer 
door  thereof  being  then  open),  in  order  to  seize  and  take,  and  then  and 
there]  seized  and  took  in  execution  the  said  goods  and  cliattels  of  the  plaint- 
iff, in  the  said  declaration  mentioned,  the  same  then  and  there  being  [in 
the  said  dwelling  house,  and]  liable  to  be  seized  and  taken  by  virtue  of  the 
said  writ,  (which  was  then  in  full  force  and  unsatisfied)  for  the  purpose  of 
levying  the  moneys  in  the  said  writ  mentioned;  [and  in  so  doing  the  de- 
fendant then  and  there  necessarily  and  unavoidably  made  a  little  noise  and 
disturbance  in  the  said  dwelling  house,  and  continued  therein,  making 
such  noise  and  disturbance,  for  the  space  of  time  in  the  said  declaration 
mentioned,  as  he  lawfully  might  for  the  cause  aforesaid,  doing  no  unneces- 
sary damage  to  the  plaintiff  on  that  occasion;]  and  afterwards,  and  before 
the  return  day  of  the  said  writ,  to  wit,  on,  etc.,  in  the  county  aforesaid, 
the  defendant,  upon  due  notice  given  according  to  law,  sold  the  said  goods 

and  chattels,  and  by  such  sale  thereof  caused  to  be  made  the  sum  of 

dollars  [parcel  of]  the  damages  and  costs  aforesaid;  which  are  the  same 
supposed  trespasses  in  the  said  declaration  mentioned,  etc.  And  this  the 
defendant  is  ready  to  verify;  wherefore  he  prays  judgment,  etc. 

The  allegation  of  the  sale  of  the  goods  is  perhaps  unneces- 
sary, and  should  of  course  be  omitted  if  there  has  been  no  sale. 
A  plea  of  jurisdiction  under  any  other  form  of  process  can  read- 
ily be  framed  from  the  above  precedent.  It  is  said  that  an 
officer  justifying  under  mesne  {not  final)  process,  must  show  a 
return.^ 

•  Tidd  (9  Ed.),  1023,  a;  3  Chit.  PL  1135,  n;  aieasley  v.  Barnes,  10  East 
83;  Edwards  v.  Lucas,  5  B.  &  C.  339. 


TRESPASS.  369 

Where  the  plaintiff  in  the  original  action  justifies  under  a 
fieri  facias  he  must  allege  a  judgment,  but  an  officer  need  not; 
and  in  trespass  against  both,  if  there  is  any  doubt  as  to  the 
regularity  of  the  judgment,  the  latter  should  plead  separately.' 

It  sometimes  happens,  where  there  is  an  execution  against  a 
debtor,  that  a  fraudulent  conveyance  of  his  goods  to  a  third 
"person,  in  whose  house  they  are  taken,  is  set  up,  and  the  lat- 
ter brings  an  action  of  trespass;  in  which  case  the  jurisdiction 
must  be  confined  to  the  entry  into  the  house,  and  the  plaint- 
iff's property  in  the  goods  disputed  under  the  general  issue. 
The  plea  in  such  case  is  similar  to  the  above  form,  but  alleg- 
ing an  execution  against  '*  one  L.  M.,"  and  at  the  asterisk  in- 
serting this  averment:  "And  the  defendant  further  says, 
that  before  and  at  the  said  time  when,  etc.,  divers  goods  and 
chattels  of  said  L.  M.,  liable  to  be  taken  in  execution  by  vir- 
tue of  the  said  writ,  were  in  the  said  d  welling  house  in  which, 
etc.;  and  that  thereupon,  by  virtue  of  the  said  writ,  the  de- 
fendant," etc. — alleging  the  entry  into  the  plaintiff's  dwelling- 
house,  and  the  seizure  of  the  goods  of  L.  M.  therein,  and 
omitting  what  relates  to  the  sale  of  the  goods.^  See  the  ob- 
servations under  forms  No.  200  and  202,  ante. 

No.  211.    Replication — to  a  plea  of  justification  tinder  process— protesting 
or  admitting  the  process,  and  de  injuria,  etc.,  as  to  the  residue. 

(As  in  No.  202,  ante,  to  the  asterisk,  and  thence  as  folloivs:)  because  pro- 
testing that  the  said  writ  of was  not  issued,  or  delivered  (or,  ' '  altliough 

true  it  is  that  the  said  writ  of was  issued,  and  delivered  ")  to  the  de- 
fendant as  such  sheriff,  in  manner  and  form  as  the  defendant  has  above  in 
his  second  plea  alleged,  nevertheless,  for  replication  in  this  behalf,  the 
plaintiif  says,  that  the  defendant,  at  the  said  time  when,  etc.,  of  his  own 
wTong,  and  without  the  residue  of  the  cause  in  that  plea  alleged,  commit- 
ted the  trespasses  in  the  said  declaration  mentioned,  in  manner  and  form  as 
the  plaintiff  has  therein  above  complained  against  the  defendant.  And  this 
the  plaintiff  prays  may  be  inquired  of  by  the  country,  etc. 

See  the  remarks  under  the  replication  de  iiijuria,  etc.,  No. 
202,  ante. 

'  Com.   Dig.   Plead.   3,   M.  24;   3         « 3  Chit.  PI.  1135. 
Chit.   PI.    1133,  n;    see  Jackson  v. 
Hobson,  4  Scam.  411. 
24 


370  TKESPASS. 

No.  213.     Plea  (in  trespass  for  driving  a  carriage  against  the  plaintiff's) 
that  the  injury  was  caused  by  the  2^laintiff's  negligence. 

{Fi7'st  plea,  not  guilty,  as  ante,  No.  190;  second  plea  as  in  A'b.  200,  ante, 
to  the  asterisk,  and  thence  as  follows:)  that  before  and  at  the  said  time 
when,  etc.,  he,  the  defendant,  was  driving  his  said  carriage  in  and  along 
the  said  highway,  the  said  carriage  of  the  plaintiff  then  also  being  and  go- 
ing in  and  along  the  said  highway;  nevertheless  the  defendant  in  fact 
says  that  the  said  carriage  of  the  plaintiff,  at  the  said  time  when,  etc.,  was 
so  carelessly,  negligently  and  improperly  managed  in  the  said  highway, 
near  to  the  said  carriage  of  the  defendant,  that  by  reason  thereof  the  said 
carriage  of  the  defendant,  by  accident,  and  without  any  default  on  the 
part  of  the  defendant,  but  by  and  through  the  want  of  due  care  in  the  man- 
agement of  the  said  carriage  of  the  plaintiff,  then  and  there  wa.s  driven 
upon  and  against  the  said  carriage  of  plaintiff,  and  thereby  the  plaintiff  sus- 
tained the  injury  in  the  said  declaration  mentioned;  and  so  the  defendant 
in  fact  says,  that  if  any  hurt  or  damage  happened  to  the  plaintiff  or  his 
said  carriage,  it  was  caused  by  such  accident,  and  not  by  the  default  of  the 
defendant;  which  are  the  same  supposed  trespasses  in  the  said  declaration 
mentioned.  And  this  the  defendant  is  ready  to  verify;  wherefore  he  prays 
judgment,  etc. 

The  general  replication  de  injuria  etc.,  No.  202,  a7iie,  may 
be  replied  to  the  above  plea. 

No.  213.  Plea  of  license. 
(First  plea,  not  guilty,  as  ante.  No.  199;  second  plea  as  in  No.  200,  ante, 
to  the  asterisk,  and  thence  as  foUoios:  (that  he,  the  defendant,  at  the  said 
time  (or  "several  times")  when,  etc.,  by  the  leave  and  license  of  the  plaint- 
iff to  him  for  that  purpose  given  and  granted,  committed  the  several  sup- 
posed trespasses  in  the  said  declaration  mentioned,  as  he  lawfully  might 
for  the  cause  aforesaid:  And  this  the  defendant  is  ready  to  verify;  where- 
fore he  prays  judgment,  etc. 

No.  214.    Replication  to  plea  of  license. 

(As  in  No.  202,  ante,  to  the  asterisk,  and  thence  as  folloics:)  because  he 
says,  that  the  defendant,  at  the  said  time  (or  "several  times")  when,  etc., 
of  his  own  wrong,  and  without  the  leave  and  license  of  the  plaintiff  to  him, 
the  defendant,  fii'st  given  and  gi-anted,  committed  the  said  trespasses,  in 
manner  and  form  as  the  plaintiff  has  above  thereof  complained  against 
him:     And  this  the  plaintiff  prays  may  be  inquired  of  by  the  country,  etc. 

Where  there  has  been  a  revocation  of  the  license  before  the 
trespass,  it  should  be  set  up  in  a  replication.'  In  trespass,  a 
license  must  be  specially  pleaded,  and  can  not  be  given  in  evi- 

^Oreenev.  Jones,  1  Saund.  300,  a;  But  see  Barnes  v.  Hunt,  11  East 
Mellor  V.  Walker,  2  Saund.  5,  n.  3-      421;  3  Chit.  PI.  1210,  n. 


TRESPASS.  371 

dence  under  the  plea  of  not  guilty.*  The  plea  of  license  may 
be  supported  by  proof  of  a  license  in  law,  as  Avell  as  in  fact, 
and  it  is  immaterial  whether  it  be  expressed  or  implied  from 
circumstances.^  Evidence  of  a  familiar  intimacy  in  the  family 
may  be  given  in  support  of  this  plea.^  An  entry  to  execute 
legal  process,  or  to  distrain  for  rent,  or  for  damage;  or  an  en- 
try by  a  remainderman  or  a  reversioner,  to  see  whether  waste 
has  been  done,  or  repairs  made;  or  by  a  commoner,  to  view  his 
cattle;  or  by  a  traveler,  into  an  inn;  or  by  a  landlord,  to  take 
possession  after  the  expiration  of  the  tenant's  lease;  or  an  en- 
try into  another's  house  at  usual  and  reasonable  hours,  and  in 
the  customar}'-  manner,  for  any  of  the  ordinary  purposes  of 
life;  may  be  given  in  evidence  under  this  plea.* 

The  evidence  must  cover  all  the  trespasses  proved,  or  it  will 
not  sustain  the  justification.'  Evidence  of  a  verbal  agreement 
for  the  sale  of  the  land  by  the  plaintiff  to  the  defendant,  is 
admissible  under  a  plea  of  license  to  enter.,  and  may  suffice  to 
support  the  plea  as  to  the  entry  only;  but  it  is  not  sufficient 
to  maintain  the  plea  in  respect  to  any  act  which  a  tenant  at 
will  may  not  lawfully  do.*  Nor  will  such  license  avail  to 
justify  acts  done  after  it  has  been  revoked.' 

Where  a  license  in  law  is  pleaded,  the  plaintiff  can  not  give 
in  evidence  a  subsequent  act  of  the  defendant,  which  renders 
him  a  trespasser  ah  initio:  but  it  must  be  specially  replied.* 
So  if  the  defendant  justifies  as  preventing  a  tortious  act  of  the 
plaintiff,  and  the  plaintiff  relies  on  a  license  to  do  the  act, 
he  can  not  give  the  license  in  evidence  under  the  general 
replication  de  injuria,  etc.,  but  must  allege  it  in  a  special 
replication.* 

^  Bahcock  v.  Lamb,  1    Cow.  238;  ^Barnes  v.  Hunt  11  East.  451;  12 

Hetfield  v.  R.  R.  Co.,  5  Dutch.  571;  Price  369;  12  Price  390. 

Crabs  v.    Fetick,   7  Blackf.    873;  1  ^  Carr  v.  Roots,  2  M.   &  W.  248; 

Chit.  PI.  (11  Am.  Ed.)  505.  Suffern  v.    Townsend,   9  Johns.  35; 

2  2  Greenl.  Ev.,  §  627.  Cooper  \.  Stower,  9  Johns.  331. 

^  Adams  V.  Truman,  12  Johns.  408.  ''  Cheever  v.  Pearson,  IG  Pick.  266. 

*2   Greenl.  Ev.,    §627;    3  Camp.  » Aitken  v.  Blades,  5  Taunt.  198; 

524;  Revett  v.  Broion,  5  Bing.  N.  C.  Taylor  v.  Cole,  3  Term.  292. 

7;  5  Com.  Dig.  PI.  895;  see  Reedcr  ^  Taylor  v.  Smith,  7  Taunt.  156;  2 

V.  Purdy,  41  111.  279.  Greenl.  Ev.,  §  628. 


372  TRESPASS. 

Ko.  S15.     Plea  of  liberum  tenementum. 

{First  plea,  not  guilty,  as  ante,  No.  199;  second  plea  as  in  No.  200.  ante,  to 
the  asterisk,  and  thence  as  follows:)  that  the  close  in  the  said  declaration 
mentioned,  and  in  which,  etc.,  noic  is,  and  at  the  said  time  {or  "several 
times  ")  when,  etc.,  was  the  close,  soil  and  freehold  of  tlie  defendant;  where- 
fore the  defendant  at  the  said  time  {or  "several  times,")  when,  etc.,  com- 
mitted the  several  supposed  trespasses  in  the  said  declaration  mentioned,  in 
the  said  close  in  which,  etc.,  as  he  lawfully  might  for  the  cause  aforesaid: 
And  this  the  defendant  is  ready  to  verify ;  wherefore  he  prays  judgment,  etc. 

"Where  one  of  t^ro  defendants  justifies  as  the  servant  of  the 
other,  the  freeholder,  the  plea  should  allege  that  the  close  was 
"•  the  close,  soil  and  freehold  of  the  said  C.  D.;  wherefore  the 
said  C.  D.  in  his  own  right,  and  the  said  E.  F.  as  his  servant, 
and  at  his  command,"  etc.,  committed  the  supposed  trespasses, 
etc. 

If  the  action  is  for  injuries  to  real  property  only,  there  is  no 
occasion  for  any  recital  in  the  commencement  of  the  plea;  but 
otherwise  it  is  necessary  to  qualify  the  plea  in  its  commence- 
ment, by  reciting  the  trespasses  to  the  realty,  to  which  tres- 
passes alone  the  plea  relates.  (See  the  remarks,  ante,  under 
form  No.  200.)  In  this  case,  after  the  averment  of  freehold, 
the  language  of  the  plea  should  be,  "  wherefore  the  defendant, 
at  the  said  time  when,  etc.,  committed  the  several  supposed 
trespasses  in  the  introdactory  jpay't  of  this  plea  mentioned,"  etc. 

The  plea  of  liberum  tenementum,  (or,  as  it  is  frequently 
called,  the  "  common  bar," )  admits  that  the  plaintiff  was  in 
possession  of  the  close  described  in  the  declaration,  and  that 
the  defendant  did  the  acts  complained  of,  raising  only  the 
question  whether  the  close  described  is  the  defendant's  free- 
hold or  not; '  and  his  title  must  be  proved,  either  by  deed  or 
other  documentary  evidence,  or  by  an  actual,  adverse  and  exclu- 
sive possession  for  twenty  years,  inasmuch  as  under  this  issue 
he  undertakes  to  show  a  title  in  himself,  which  shall  do  away 
with  the  presumption  arising  from  the  plaintiff's  possession.' 
Proof  of  atenamjy  in  common  with  the  plaintiff  is  not  admissible 

»  Cocker  v.  Crompton,  1  B.  &  C.  111.  173;  Ry.  Co.   v.  Morrison,   160 

489;  Lemprier  v.  Humiihrey,  3  Ad.  111.  288. 

&  El.  181;  Doe  v.  Wright,  10  Ad.  &  =  Brest  v.  Lever,  7  M.  &  W.  593; 

El.  763;  see  Dean  v,   Comstock,  33  see  Beach  v.  Livergood,  15  Ind.  496. 


TRESPASS.  3  I  3 

under  this  plea.'  If  the  defendant  succeeds  in  establishing  a 
title  to  that  part  of  the  close  on  which  the  trespass  was  com- 
mitted, he  is  entitled  to  recover,  though  he  does  not  prove  a 
title  to  the  whole  close;  the  words,  "  the  close  in  which,"  etc., 
constituting  a  divisible  allegation.*  Under  this  plea  an}^  estate 
of  freehold,  as  in  fee,  in  tail,  or  for  life,  but  not  a  freehold  in 
remainder  or  reversion,  may  be  given  in  evidence.^ 

It  is  held  in  Illinois  that,  although  the  owner  in  fee  of  the 
land  is  kept  out  of  the  possession,  he  can  not  be  permitted  to 
enter  against  the  will  of  the  occupant;  and  that  the  common- 
law  right  to  enter,  and  use  all  necessary  force  to  obtain  the 
possession  from  him  who  may  wrongfully  withhold  it,  has 
been  taken  away  by  the  statute  of  forcible  entry  and  detainer.* 

It  has  been  held  that  if,  in  an  action  of  trespass  qnare 
clausum  f regit,  the  defense  pleaded  is  liberum  tenementum, 
judgment  for  the  plaintiff  is  conclusive  upon  the  defendant 
when  he  afterwards  attempts  to  set  up  title,  subject  to  the 
qualification  that  the  close  described  in  the  second  action  is 
the  same  as  that  described  in  the  first." 

The  common  bar  is  rarely  of  any  other  utility  than  to  com- 
pel a  new  assignment,  describing  the  close,  when  it  has  not 
been  particularly  described  in  the  declaration;  ^  though  the 
plea  may  sometimes  be  useful  and  proper  for  other  purposes.' 
In  regard  to  this  plea,  see  3  Chitty  on  Pleading,  index,  title 
liberum  tenementum,  Gould's  Pleading,  cap.  6,  §§  91,  92,  93,  and 
Andrews'  Steph.  PL  §  178. 

No.  216,    Replication  to  a  plea  of  liberum  tenementum,  denying  it, 

{As  in  No.  202,  ante,  to  the  asterisk,  and  thence  as  follows ;)  because  he  says, 
that  the  said  close  in  which,  etc.,  is  7iot  now,  and  at  the  said  time  {or 
"several  times")  when,  etc.,  was  not  the  close,  soil  and  freehold  of  the 
defendant,  in  manner  and  form  as  he  has  above  in  his  said  second  plea 
alleged.    And  this  the  plaintiff  prays  may  be  inquired  of  bj'  the  countrj',  etc. 

»  Gow.  201;   Roberts  v.  Dame,  11  Reederv.  Purdij,  48  111.   261;  Page 

N.  H.  226;  see  Jewett  v.  Foster,  14  v.  De  Piiy,  40  111.  506. 

Gray  495.  «  Elson  v.  Comstock,  150  111.  303. 

^  Smith  V.  Roy,  8  M.  &  W.   381;  «1   Chit.    PI.    (11   Am.   Ed.),  503; 

Richards  v.  Peake,  2  B.  &  C.  918;  2  Gould's  PI.,  c.  6,  gg  91-93. 

Greenl.  Ev.,  §§618,  626.  '1    Chit.  PI.    (11   Am.  Ed.),    505; 

^  1  Chit.  PI.  (11  Am.  Ed.),  .503.  3  Id.,  1098,  n. 

*Reeder  v.  Purdy,   41    Ul.    279; 


374  TRESPASS. 

No.  S17.  New  assignment. 
{As  in  No.  202,  ante,  to  the  asterisk,  and  thence  as  folloics:)  because  he 
says,  that  the  said  close  in  which,  etc.,  now  is,  and  at  the  said  time  {or 
"  several  times  ")  when,  etc.,  was  a  certain  close  in  the  county  aforesaid, 
known  and  described  as  {here  describe  the  land);  which  said  close  now  is, 
and  at  the  said  time  (or  "several  times")  when,  etc.,  was  another  and  dif- 
ferent close  from  the  close  in  the  said  second  plea  of  the  defendant  men- 
tioned, and  therein  alleged  to  be  the  close,  soil  and  freehold  of  the  defend- 
ant. And  this  the  plaintiff  is  ready  to  verify;  wherefore,  inasmuch  as  the 
defendant  has  not  answered  the  said  trespasses  by  him  committed  in  the 
said  close  in  which,  etc.,  above  newly  assigned,  the  plaintiff  prays  judg- 
ment, and  his  damages  on  occasion  of  the  ccmimitting  of  the  said  trespasses, 
above  newly  assigned,  to  be  adjudged  to  him,  etc. 

To  the  plea  of  liberum  tenementwm,  the  plaintiff  may  reply, 
according  to  the  facts,  in  either  of  four  ways :  First,  if  the 
close  has  been  so  minutely  described  in  the  declaration  that 
there  can  be  no  question  what  close  is  meant,  and  the  plaint- 
iff's title  is  inconsistent  with  that  of  the  defendant,  then  the 
replication  should  deny  that  the  close  is  the  defendant's 
freehold,  and  should  conclude  to  the  country;  second,  if  the 
plaintiff  derives  title  under  the  defendant,  then  the  plaintiff, 
confessing  the  defendant's  title,  must  reply  the  lease,  or  some 
other  title,  under  him,  concluding  with  a  verification;  third, 
if  the  plaintiff  neither  derives  title  under  the  defendant,  nor 
has  a  title  inconsistent  with  the  defendant's,  he  may  reply 
that  before  the  defendant  had  anything  in  the  premises,  an- 
other person  was  seized,  and  made  a  lease  to  another  person 
under  whom  the  plaintiff  claims,  stating  his  derivative  title, 
■without  either  expressly  confessing  or  denying  the  defendant's 
plea,  and  concluding  with  a  verification;  or,  fourth,  if  the 
declaration  does  not  specify  the  locus  in  quo,  and  there  is  any 
reason  to  apprehend  that  the  defendant  has  any  land  in  the 
same  county,  the  plaintiff'  must  new  assign,  setting  out  the 
locus  in  quo  with  more  particularity/ 

The  plea  of  liberum  tenementum  is  a  good  plea  to  an  action 
of  trespass  quare  clausum  f.regit  in  Illinois/ 

1 1  Chit.  PI.  (11  Am.  Ed.)  595;  see  '^ Lodge  v.  Klein,  115  111.  177;  Piper 

3  Chit.  PI.  1209,  n.,  1216;  Gould's  PI.  v.  Connelly,  108  111.  646;  Farwell  v. 

Cap.  6,  Sec.  93;  Hyatt  v.   Wood,  4  IFarreu,  51  III.  467;  Haskinsv.  Has- 

Johns.loO;  Austin  V.  Morse,  8  Wend.  kins,  67  111.  446;  R.  R.  Co.  v.  Cobb, 

477;  Collum  v.Andrews,Q  Watts,516.  68  111.  53;  R.  R.  Co.  v.  Cobb,  94  111.  55. 


CHAPTER  XL 

ATTACHMENT. 

The  writ  of  attachment,  in  civil  actions  at  law,  is  a  species 
of  process  upon  which  the  property  of  a  defendant  may  be 
seized  and  held  to  satisfy  the  judgment  which  the  plaintiff 
may  obtain.  The  proceeding  is  wholly  statutory,  and  the  en- 
actments on  the  subject,  in  the  various  states,  differ  materially 
in  their  provisions.  It  is  only  proposed,  in  this  chapter,  to 
consider  this  remedy  as  it  exists  under  the  laws  of  Illinois. 

Nature  of  the  proceeding,  etc. — The  proceeding  by  at- 
tachment is  in  rem;  and  unless  there  has  been  a  seizure  of 
property  of  the  defendant,  or  a  garnishee  has  been  summoned, 
or  there  has  been  actual  service  on  the  defendant,  or  an  ap- 
pearance entered  by  him,  the  court  has  no  jurisdiction  to  pro- 
ceed to  judgment.' 

In  an  action  commenced  by  attachment  where  there  has 
been  constructive  notice  only,  by  publication,  if  the  defendant 
appears  and  pleads  to  the  action,  the  suit  thereby  becomes  a 
proceeding  in  personam,  and  a  judgment  in  personam  may  be 
rendered  against  the  defendant.* 

When  the  defendant  has  been  served  with  the  writ,  or 
appears  to  the  action,  the  judgment  has  the  same  force 
and  effect  as  in  suits  commenced  by  summons;  and  execution 
may  issue  thereon  not  only  against  the  property  attached,  but 
the  other  property  of  the  defendant.' 

^3Iartin  v.  Dryden,  1  Gilm.  187;  ^Kerr  v.  Simllow,  ZSIU.  319;  Conn 

Haywood  V.  Collins,  60  III.  328;  West  v.   Caldwell,  1  Gilm.  531;  Martin  v. 

V.  Schnebly.   54  111.   523;  Peojjle  v.  Dryden,  1  Gilm.  187;  Swift  y.   Lee, 

Cameron,  2  Gilm.  468;    Clymore'v.  65  111.  336. 

Williams,  77  111.    618;    Borders  v.  »  1  Starr  &  Curtis  324;  Rev.  Stat. 

Murphy,  HSm.  SI;  Schrorerv.  Petti-  (1893)    174;     Rev.  Stat.    (1895)178; 

hone,  58  111.  App.  436.  Connv.  Caldwell,  1  Gilm.  531;  Youna 

(375) 


376  ATTACHMENT. 

The  benefit  of  the  remedy  is  not  confined  to  any  particular 
form  of  action.  Any  creditor  is  authorized,  under  certain  cir- 
cumstances, to  sue  out  an  attachment;  and  an  action  of  account 
may  be  commenced  in  this  manner.'  A  creditor  may  proceed 
by  attachment  and  by  petition  for  a  mechanic's  lien,  as  con- 
current remedies." 

Proceedings  by  attachment,  being  in  derogation  of  the  com- 
mon law,  and  deriving  all  their  validity  from  statutes,  must  in 
all  essential  particulars  conform  to  the  requirements  of  such 
statutes.^ 

Ill  what  cases  attaclinient  lies,  etc. — Section  1  of  the  At- 
tachment act  provides  that  a  creditor  may  have  an  attachment 
against  the  property  of  his  debtor,  or  that  of  any  one  or  more 
of  several  debtors,  when  the  debt  exceeds  twenty  dollars,  in 
any  of  the  following  cases : 

1st.     Where  the  debtor  is  not  a  resident  of  the  state. 

2d.  "When  the  debtor  conceals  himself,  or  stands  in  defi- 
ance of  an  officer,  so  that  process  can  not  be  served  upon  him. 

3d.  Where  the  debtor  has  departed  from  the  state,  with 
the  intention  of  having  his  effects  removed  therefrom. 

4th.  Where  the  debtor  is  about  to  depart  from  the  state, 
with  the  intention  of  having  his  effects  removed  therefrom. 

5th.  Where  the  debtor  is  about  to  remove  his  property  from 
the  state,  to  the  injury  of  such  creditor. 

6th.  Where  the  debtor  has,  within  two  years  preceding  the 
filing  of  the  affidavit  required,  fraudulently  conveyed  or  as- 
signed his  effects,  or  a  part  thereof,  so  as  to  hinder  or  delay  his 
creditors. 

7th.  Where  the  debtor  has,  within  two  years  prior  to  the 
filing  of  such  affidavit,  fraudulently  concealed  or  disposed  of 
his  property,  so  as  to  hinder  or  delay  his  creditors. 

8th.  Where  the  debtor  is  about  fraudulently  to  conceal,  as- 
sign or  otherwise  dispose  of  his  property  or  effects,  so  as  to 
hinder  or  delay  his  creditors. 

9th.  Where  the  debt  sued  for  was  fraudulently  contracted 
on  the  part  of  the  debtor;  provided,  the  statement  of  the 
debtor,  his  agent  or  attorney,  which  constitute  the  fraud,  shall 

V.   Campbell,  5  Gilm.  80;  Kerr  v.  ^  Moore  v.  Hamilton,  2  Gilm.  429; 

Swallow,  33  111.  879.  Cariker  v.   Anderson,   27    III.  358; 

'  Humjihi'eys  v.  MaWieios,  11  111.  Thommeyer  v.  Sisson,  83  111.   188; 

471.  Reitz  v.  People,  77  111.  518;  Haywood 

2  West  V.  Fleming,  18  111.  248;   De-  v.  Collins,  60  III.  328;  see  R.  R.  Co. 

lehayv.  Clement,  3  Scam.  201;  Cul-  v.  Crane,  102  III.  249;  Dennison  v. 

ver  V.  Ehcell,  73  111.  537.  Blumenthal,  37  111.  App.  385. 


ATTACHMENT.  377 

have  been  reduced  to  writing,  and  his  signature  attached 
thereto  by  himself  or  his  agent  or  attorney.' 

It  is  further  provided  that  the  act  shall  be  construed  in  all 
courts  in  the  most  liberal  manner  for  the  detection  of  fraud."* 

Commencement  of  proceeding — Affidavit,  etc. — Section  2 
provides,  that  to  entitle  a  creditor  to  a  writ  of  attachment, 
"he  or  his  agent  or  attorney  shall  make  and  file  with  the  clerk 
of  such  court,  an  affidavit,  setting  forth  the  nature  and  amount 
of  the  indebtedness,  after  allowing  all  just  credits  and  set-offs, 
and  any  one  or  more  of  the  causes  mentioned  in  the  preced- 
ing section,  and  also  stating  the  place  of  residence  of  the  de- 
fendant, if  known,  and  if  not  known,  that  upon  diligent 
inquiry  the  affiant   has  not  been  able  to  ascertain  the  same." ' 

The  statute  further  provides  that  "  it  shall  be  sufficient,  in 
all  cases  of  attachment,  to  designate  defendants  by  their  re- 
puted names,  by  surnames,  and  joint  defendants  b}^  their  sep- 
arate or  partnership  names,  or  by  such  names,  styles  or  titles 
as  they  are  usually  known ;  and  heirs,  executors  and  admin- 
istrators of  deceased  defendants  are  subject  to  the  provisions 
in  all  cases  in  which  it  may  be  applicable  to  them."  * 

No.  218.    Affidavit  for  attachment. 

State  of  Illinois,  ) 

County  of [set.     A.  B.,  of,  etc.,  makes  oath  and  says,  that  C.  D. 

is  indebted  to  him,  the  said  A.  B.,  in  the  sum  of dollars,  (after  allow- 
ing all  just  credits,  deductions  and  set-offs,)  for  {here  set  forth  the  nature  of 
the  debt);  and  that  the  said  C.  D.  {here  set  forth  one  or  more  of  the  causes 
mentioned  in  the  statute.)    And  this  affiant  further  says,  that  the  place 

of  residence  of  the  said  C.  D.  is {or,  "  is  unknown  to  this  affiant, 

and  upon  diligent  inquiry  he  has  not  been  able  to  ascertain  the  same.") 

A.  B. 
Subscribed  and  sworn,  etc. 

>  1  Starr  &  Curtis,  310;  Rev.  Stat.  « 1  Starr  &  Curtis,  327;  Rev.  Stat. 

(1893)  169;  Rev.  Stat.  (1895)  173;  see  (1893)    174;    Rev.    Stat.    (1895)  178; 

Spear   v.   Joyce,   27    111.   App.  456;  Dodge  v,    Yates,  21  111.   App.    547: 

Boggs  v.  Bindskoff,  23111.  66;  Young  Everingham  v.  Bank,  124  111.  527. 

V.  Nelson,  25  111.  565;  Laflinx.  Pub.  ^  Rev.  Stat.  (1893)   169;  Rev.  Stat. 

House,  52  111.  432:  Bryant  v.  Simon-  (1895)  173;   1   Starr  &  Curtis,   310; 

eau,  51  111.  324;  Shove  v.   Farwell,  9  Hogue  v.  Corbit,  156  111.  540. 

Bradw.  256;  Wiyikler  v.    Barthel,  6  *  Reitz  v.  People,  77  111.  518;  Prins 

Bradw.  Ill;  Yates  v.  Dodge,  123  111.  v.Hinchcliff,  17  Brad.  153;  Buchman 

50;    Weare  v.    Dridey,   156  111.  24;  v.  Dodds,  6  Brad.  25;  Hill  v.  Har- 

Standard  v.  Morrison,  54  111.  App.  ding,  93  111.  77;  Ry.  Co.  v.  Packet 

531.  Co.,  108  111.  317. 


378  ATTACHMENT. 

Wh?n  matle  by  an  agent  or  attorney,  the  afTidavit  should 
commence  thus  :  "  E.  F.,  of,  etc.,  makes  oath  and  says  that 
he  is  the  agent  (or  '  attorney ')  in  this  behalf  of  A.  B.,  of,  etc.; 
and  that  C.  I),  is  indebted  to  the  said  A.  B.,"  etc. 

The  statute  concerning  oaths  and  affirmations  provides  that 

"All  oaths  and  affirmations,  required  or  authorized  to  be 
taken  by  any  law  of  the  state,  when  the  person  required  to 
make  or  take  the  same  shall  reside  out  of  or  be  absent  from 
this  state,  may  be  administered  by  any  notary  public,  or  clerk 
of  a  court  having  a  seal,  to  be  certified  to  by  such  officer  under 
his  official  seal,  or  of  the  court  of  which  he  is  clerk."  ' 

Within  the  state,  an  affidavit  may  be  made  before  any  court, 
or  any  judge,  justice  or  clerk  thereof,  or  any  notary  public, 
justice  of  the  peace,^  or  master  in  chancery,^  in  their  respect- 
ive districts,  circuits  or  counties. 

The  affidavit  must  be  positive  and  unequivocal  in  its  terms; 
statements  upon  information  and  belief  are  insufficient; '  but 
if  it  is  defective  it  may  be  amended." 

The  affidavit  should  state  the  full  amount  due,  as  a  judg- 
ment can  not  be  rendered,  where  there  is  no  personal  service, 
or  appearance,  for  a  greater  sum  than  thut  claimed  in  the 
affidavit,  with  the  accrued  interest.^  JSTor  should  the  judg- 
ment exceed  the  amount  laid  in  the  ad  damnum  clause  of  the 
declaration.'  Attachment  will  not  lie  if  no  part  of  the  debt 
is  due." 

Traversing  affidavits. — Section  27  provides  that 

"  The  defendant  may  plead  traversing  the  facts  stated  in 
the  affidavit  upon  which  the  attachment  issued,  which  plea 
shall  be  verified  by  affidavit;  and  if,  upon  the  trial  thereon, 
the  issue  shall  be  found  for  the  plaintiff,  the  defendant  may 

'  2  Starr  &  Curtis,  1677;  Rev.  Stat.  Moore  v.  Maiick,   79  111.    391;  Page 

(1893)  999;  Rev.  Stat.  (1895)  1067.  v.  DilJon,  61  111.  App.  282. 

s  j5_  ^  Roivley  v.  Berrian,   12  111.    198; 

3  1b.  Tunnison  v.  Field,  21  111.  108;  Hick- 

*  Dyer  v.  Flint,  21  111.  80;  Booth  ins  v.  Lyon,  35  111.  150;  Hobson  v. 

V.  Rees,  26  111.  48;  Archer  v.  Claflin,  Emporium,  42  111.  306. 

31  111.  306;  Prins  v.   Hinclicliff,  17  ">  Hichins   v.  Lyoji,  35  111.  150;  see 

Bradw.  153.  Adams  v.  Merritt,  10  Bradw.  275. 

^Miere    v.    Brush,    3   Scam.    21;  « Drake  on  Att,  5  Ed.,  273,274; 

Campbell    v.    Whetstone,   3    Scam.  Sdiilling  v.  Deane,  36  111.  App.  513. 
361;  Arclier  v.  Claflin,   31  111.  306; 


ATTACHMENT.  379 

plead  or  demur  to  the  action  as  in  other  cases;  but  if  found  for 
the  defendant,  the  attachment  shall  be  quashed  and  the  costs 
of  the  attachment  shall  be  adjudged  against  the  plaintiff,  but 
the  suit  shall  proceed  to  final  judgment  as  though  commenced 
by  summons." 

This  section  warrants  the  trial  of  an  attachment  issued  be- 
fore the  hearing  upon  the  case  to  which  it  is  an  adjunct.  It  is 
not  compulsory  to  submit  both  issues  at  the  same  time  to  one 
jury,  and  the  parties  may  consent  to  separate  trials,  or  the 
court  in  its  discretion  may  so  order.' 

Where  an  affidavit  for  an  attachment  in  aid  is  traversed  b}'' 
a  plea  in  denial,  the  defendant  is  entitled  to  a  trial  upon  the 
issues  so  formed,  and  a  judgment  taken  against  persons  sum- 
moned as  garnishees  before  the  issue  is  disposed  of,  is  irregular."^ 

Amendments. — The  statute  (section  28)  also  provides  that 

"No  writ  of  attachment  shall  be  quashed  nor  the  property 
taken  thereon  restored,  nor  any  garnishee  discharged,  nor  any 
bond  by  him  given  canceled,  nor  any  rule  entered  against  the 
sheriff  discharged,  on  account  of  any  insufficiency  of  the  origi- 
nal affidavit,  writ  of  attachment  or  attachment  bond,  if  the 
plaintiff,  or  some  credible  person  for  him,  shall  cause  a  legal 
and  sufficient  affidavit  or  attachment  bond  to  be  filed,  or  th3 
writ  to  be  amended,  in  such  time  and  manner  as  the  court 
shall  direct;  and  in  that  event  the  cause  shall  proceed  as  if 
such  proceedings  had  originally  been  sufficient."  ^ 

Where  the  suit  is  to  be  brought. — Proceedings  in  attach- 
ment are  required  to  be  commenced  in  the  county  where  the  de- 
fendant may  be  found,  or  where  he  has  property  or  funds  liable 
to  garnishment;  and  service  must  be  had  upon  him  or  his  prop- 
erty, etc.,  in  order  to  give  the  court  jurisdiction.*  But  "  the 
creditor  may,  at  the  same  time,  or  at  any  time  before  judg- 
ment, cause  an  attachment  writ  to  be  issued  to  any  other 
county  in  the  state,  where  the  debtormay  have  property  liable 
to  be  attached,  which  shall  be  levied  as  other  attachment  writs; 
provided,  that  if  no  property,  rights  or  credits  of  the  debtor 
are  found  in  the  county  in  which  the  suit  is  brought,  and  no 

»Pagre  v.  Dillon,  61  III.  App.  283.  v.  Banh,  127  III.  332;  Page\.  Dillon, 

2  Crandall  v.Birge,Gl  111.  App.  234.  61  111.  App.  282. 

U  Starr  &  Curtis,  322;   Rev.  Stat.  *  Hinman  v.  Rushmore,  27111.  509; 

(1893),  173;  Rev.  Stat.  (1895),  177;  see  Fuller  v.    Longford,    31     111.     248; 

Roberts  v.  Dunn,  71  111.  46;  Smith  House  v.  Hamilton,  4S  III.  185;  West 

V.  Clinton,  13  111.  App.  572;  Bailey  v.  Schnebly,  54  111.  523. 


330  ATTACHMENT. 

defendant  is  served  witli  summons  or  makes  appearance,  the 
creditor  sliall  not  be  entitled  to  judgment."  ' 

Plaintiff  required  to  give  bond. — Section  4  provides  that 
"  Before  grantiuo;  an  attachraant,  as  aforesaid,  the  clerk  shall 
take  bond  and  sufficient  security,  payable  to  the  defendant 
against  whom  the  writ  is  to  be  issued,  in  double  the  sum  sworn 
to  be  due,  conditioned  for  satisfying  all  costs  which  may  be 
awarded  to  such  defendant,  or  to  any  others  interested  in  said 
proceedings,  and  all  damages  and  costs  which  shall  be  recov- 
ered against  the  plaintiff,  for  wrongfully  suing  out  such 
attachment — which  bond,  with  affidavit  of  the  party  com- 
plaining, or  his  agent  or  attorney,  shall  be  filed  in  the  office  of 
the  clerk  granting  the  attachment.  Every  attachment  issued 
without  a  bond  and  affidavit  taken,  is  hereby  declared  illegal 
and  void,  and  shall  be  dismissed." " 

If  the  bond  is  found  to  be  defective,  it  may  be  amended.' 
Objections  to  a  defective  bond  must  be  made  in  apt  time.  It 
is  too  late  to  object  to  such  bond  after  the  cause  is  removed  to 
the  supreme  court.*  The  statute  gives  the  form  of  the 
plaintiff's  bond  as  well  as  of  the  writ  of  attachment.^ 

Attachment  against  joint  debtors. — Section  7  provides  that 
"  In  all  cases  where  two  or  more  persons  are  jointly  in- 
debted, either  as  partners  or  otherwise,  and  an  affidavit  shall 
be  filed  as  provided  in  the  first  section  of  this  act,  so  as  to 
bring  one  or  more  of  such  joint  debtors  within  its  provisions, 
and  amenable  to  the  process  of  attachment,  then  the  writ  of 
attachment  shall  issue  against  the  property  and  effects  of  such 
as  are  so  brought  Avithin  the  provisions  of  this  act;  and  the 
officer  shall  be  also  directed  in  said  writ  to  summon  all  joint 
debtors  named  in  the  affidavit  filed  in  the  case,  whether  the 
attachment  is  against  them  or  not,  to  answer  to  the  said 
action,  as  in  other  cases  of  joint  defendants."® 

Under  the  Illinois  statute  an  attachment  against  a  partner- 
ship by  the  firm  name,  as  an  entity,  can  only  be  sustained 
when  the  affidavit  discloses  grounds  of  attachment  against 

'  Starr  &  Curtis  316;   Rev.  Stat.  577;  Turner  v.  Armstrong,  9  Bradw. 

(1893)  170;  Rev.  Stat.  (1895)  174;  see  24. 

Haywood  v,  McCrary,   33  111.    460;  *  Morris  v.  Trustees,  15   111.    266; 

Laiover  v.    Langhans,    85    111.    138;  Lawver  v.    Langhans,   85  111.    138; 

Buchman  v.  Dodds,  6  Brad.  25;  Field  Miere  v.  Brush,  3  Scam.  21. 

Y.Shoojy,  6  Bradw.  445;  Kellogg  v.  ^1  Starr  &  Curtis  312;  Rev.  Stat. 

Shooji,  6  Bradw.  454.  (1893)  169;  Rev.  Stat.  (1895)  173. 

2  1  Starr  &  Curtis  311;   Rev.  Stat.  «1  Starr  &  Curtis  312;  Rev.  Stat. 

(1893)  169;  Rev.  Stat.  (1895)  173.  (1893)  170;  Rev.  Stat.  (1895)  174. 

2  See  Singleton  v.  Waffoi-d,  3  Scam. 


ATTACHMENT  3S1 

each  of  the  partners,  and  when  such  grounds  exist.  All  the 
partners  must  be  brought  within  the  jurisdiction  of  the  court.* 

Execution  of  the  writ — Service  on  the  defendant,  etc. — 
Section  8  provides  that 

"  The  officer  shall  without  delay  execute  such  writ  of  attach- 
ment upon  the  lands,  tenements,  goods,  chattels,  rights,  credits, 
moneys  and  effects  of  the  debtor,  or  upon  any  lands  or  tene- 
ments in  and  to  which  such  debtor  has  or  may  claim  any  equi- 
table interest  or  title,  of  sufficient  value  to  satisfy  the*^  claim 
sworn  to,  with  costs  of  suit  as  commanded  in  such  writ."  ^ 

It  has  been  held  that  this  statute  should  be  liberally  con- 
strued and  that  whatever  is  the  proper  subject  of  seizure  and 
sale  on  execution,  may  be  taken  in  a  proceeding  by  attach- 
ment, and  held  subject  to  sale  under  the  judgment  that  may 
be  recovered.  Shares  of  stock  in  an  incorporated  company 
are  subject  to  attachment  under  the  laws  of  this  state.  In 
case  the  shares  have  been  attached,  the  purchaser  at  the  sher- 
iff's sale  on  execution  will  be  entitled  to  all  the  dividends  ac- 
cruing after  the  attachment.'  Alias  attachment  writs  are  not 
authorized  by  the  statute." 

Certificate  of  levy. — Section  9  provides  that 

"  When  a  writ  of  attachment  is  levied  upon  any  real  estate, 
in  any  case,  it  shall  be  the  duty  of  the  officer  making  the  levy 
to  tile  a  certiticate  of  such  fact  with  the  recorder  of  the  county 
where  such  land  is  situated;  and  from  and  after  the  filing  of 
the  same  such  levy  shall  take  effect,  as  to  creditors  and  hona 
fide  purchasers,  without  notice,  and  not  before."  ^ 

Serving  defendant — Return,  etc. — Sections  10,  11  and  12 
provide  that 

"  The  officer  shall  also  serve  said  writ  upon  the  defendant 
therein,  if  he  can  be  found,  by  reading  the  same  to  him  or 
delivering  a  copy  thereof.  The  return  to  such  writ  shall 
state  the  particular  manner  in  which  the  same  was  served." 

^  Bates  on  Partnership,  Sec.  1117;  Culver  v.   Rumsey,    7  Bradw.    442; 

Lawrence  v,  Steadman,  49  111.  270;  Wallace  v.  Monroe,  22  111.  App.  602. 

Hinman  v.  Opera  Co.,  49  111.  App.  *  Bank  v.  Byram,  131  111.  92. 

135.  ''  Dennison  v.   Blumenthal,  87  111. 

« 1  Starr  &  Curtis,  313;  Rev.  Stat.  App.  385. 

(1893)  170;  Rev.  Stat.  (1885),  174;  see  ^See  Martin  v.  Dryden,  1  Gilm. 

May  V,  Baker,  15  111.  89;  Loivery  v.  187;  Pearl  v.  Wellman,  3  Gilm.  311; 

Wright,  15  111.  95;  West  v.  Schnebly,  Jones  v.  Jones,  16  111.  117. 

54  111.  523:  Chjmore  v.  Williams,  77  « 1  Starr  &  Curtis  315;  Rev.  Stat. 

m.  Q18;  Bank  V.  Keeler,  103  m.  425;  (1893),    170;    Rev.    Stat.  (1895),  174; 

Culver  V.   Rumsey,    6  Bradw.  598;  Bee  Reitz  v.  People,  77  111.  518. 


3S2  ATTACHMENT. 

If  it  shall  appear,  b}^  the  affidavit,  that  a  debtor  is  actually 
absconding,  or  concealed,  or  stands  in  defiance  of  an  officer 
duly  authorized  to  arrest  him  on  civil  ])rocess,  as  aforesaid,  or 
has  departed  this  state  with  the  intention  of  having  his  effects 
and  personal  estate  removed  out  of  the  state,  or  intends  to  de- 
part with  such  intention,  it  shall  be  lawful  for  the  clerk  to 
issue,  and  the  sheriff  or  other  officer  to  serve,  an  attachment 
against  such  debtor,  on  a  Sunday  as  on  any  other  day.'  If 
the  defendant,  or  any  person  for  him,  shall  be  in  the  act  of 
removing  any  personal  property,  the  officer  may  pursue  and 
take  the  same  in  any  county  in  this  state,  and  return  the  same 
to  the  county  from  which  such  attachment  issued." ' 

The  declaration,  etc. — The  declaration  is  to  be  in  form  to 
correspond  with  the  nature  of  the  action  in  which  the  attach- 
ment has  issued.  It  must  be  filed  on  the  return  of  the  attach- 
ment, or  at  the  term  of  the  court  when  the  same  is  made 
returnable.  If  the  declaration  is  not  so  filed,  the  defendant 
may,  in  the  discretion  of  the  court,  have  the  suit  dismissed;^ 
but  the  plaintiff  has  the  whole  term  in  which  to  file  a  declara- 
tion. The  defendant  may,  however,  obtain  a  rule  on  the  plaint- 
iff to  file  a  declaration  withii;!  a  reasonable  time  during  the 
return  term;  and  upon  a  failure  to  comply  with  the  rule,  the 
suit  may  be  dismissed.  The  statute  applies  as  well  to  cases 
where  there  is  as  where  there  is  not  personal  service.* 

The  declaration  must  be  limited  to  the  cause  of  action  speci- 
fied in  the  affidavit.  If  the  plaintiff  might  recover  under  the 
common  counts,  on  the  cause  of  action  set  forth  in  the  affidavit, 
commencing  by  attachment  does  not  deprive  him  of  the  right 
to  declare  in  that  way.' 

Garnishees. — Section  21  of  the  statute  provides  that 

"  When  the  sheriff  or  other  officer  is  unable  to  find  property 
of  any  defendant,  sufficient  to  satisfy  any  attachment  issued 
under  the  provisions  of  this  act,  he  shall  summon  the  persons 

1 1  Starr  &  Curtis  316;    Rev.  Stat.  *  Stoddard  v.   Miller,  29  1\\.  291; 

(1893)  170;     Rev.    Stat.    (1895),   174;  White  v.  Hogiie,  18  111.   150:  Plato 

see  Thomas  y.  Hinsdale,  78  III.  259.  v.  Turrill,  18  111.   273;  see   Craft  v. 

"'  See  Home  v.  Hamilton,  43  111.  Turney,  25  111.  324;  Lawver  v.  Lan- 

185.  ghans,  85  111.  138;  Bartlett  v.  Sulli- 

»1  Starr  &  Curtis  320;  Rev.  Stat.  van,  87  lU.  219. 

(1893),    172;   Rev.    Stat.    (1895),    176;  ^  Tunnison  v.  Field,   21   111.   108; 

Thompson    v.   Conover,  12  Bradw.  see  Plato  v.  Turrill,  18  111.  273. 
302. 


ATTACHMENT.  383 

mentioned  in  such  writ  as  garnishees,  and  all  other  persons 
within  his  county  whom  the  creditor  shall  designate  as  having 
an}"^  property,  effects,  choses  in  action  or  credits,  in  their  posses- 
sion or  power  belonging  to  the  defendant,  or  who  are  in  any- 
wise indebted  to  such  defendant,  tlie  same  as  if  their  names 
had  been  inserted  in  such  writ;  the  persons  so  summoned  shall 
be  considered  as  garnishees,  and  the  sheriff  shall  state,  in  his 
return,  the  names  of  all  persons  so  summoned,  and  the  date  of 
such  service  on  each."  ' 

Notice  to  the  defendant  by  pnblication. — Section  22  pro- 
vides that 

"  "When  it  shall  appear  by  the  affidavit  filed,  or  by  the  return 
of  the  officer,  that  a  defendant  in  any  attachment  suit  is  not 
a  resident  of  this  state,  or  the  defendant  has  departed  from 
this  state,  or  on  due  inquiry  can  not  be  found,  or  is  concealed 
within  this  state,  so  that  process  can  not  be  served  upon  him, 
it  shall  be  the  duty  of  the  clerk  of  the  court  in  which  the 
suit  is  pending  to  give  notice,  by  publication  at  least  once 
in  each  week  for  three  weeks  successively,  in  some  newspaper 
published  in  this  state,  most  convenient  to  the  place  where 
the  court  is  held,  of  such  attachment,  and  at  whose  suit, 
against  whose  estate,  for  what  sum,  and  before  what  court 
the  same  is  pending;  and  that  unless  the  defendant  shall  ap- 
pear, give  bail,  and  plead  within  the  time  limited  for  his 
appearance  in  such  case,  judgment  will  be  entered,  and  the 
estate  so  attached  will  be  sold.  And  such  clerk  shall,  within 
ten  days  after  the  first  publication  of  such  notice,  send  a  copy 
thereof  by  mail,  addressed  to  such  defendant,  if  the  place  of 
residence  is  stated  in  such  affidavit;  and  the  certificate  of  the 
clerk  that  he  has  sent  such  notice  in  pursuance  of  this  section, 
shall  be  evidence  of  that  fact."  ^ 

Where  there  is  no  personal  service  upon  the  defendant,  the 
record  must  show  affirmatively  that  the  requirements  of  the 
statute,  in  regard  to  notice  by  publication,  have  been  fulfilled.' 

Default — Continuance  for  service,  etc. — Sections  23  and 
24  provide  that 

No  default  or  proceeding  shall  be  taken  against  any  defend- 
ant not  served  with  summons,  unless  he  shall  appear,  until  the 
expiration  of  ten  days  after  the  last  publication  as  aforesaid. 

'  1  Starr  &  Curtis  319;  Rev.  Stat.  Dennison    v.    Taylor,    142    111.   45; 

(1893),  172;  Rev.  Stat.  (1895.),  176.  Baldwin  v.  Ferguson,  35  111.  App. 

2See  Pierce  V.  CaWefo?i.  12  111.  358;  393;  Smith  v.  H\iniooii,  1R4  111.  24, 

Thormeyer    v.  Sisson,   83    111.   188;  ^  Haywood  v.  McCrory.Sii  III  4r}d; 

Lau-ver  v.   Langhans,  85    111.    138;  Lander  v.   Langhans.   85   111.    1C8; 

Smith  V.    Clinton,   13   Bradw.  572;  Haywood  v,  Collins,  CO  111.  328. 
Haywood    \.    Colliiis,  60    111.   328; 


384:  ATTACHMENT. 

"  If  for  want  of  due  publication  or  service,  the  cause  is  con- 
tinued, the  same  proceedings  shall  be  had,  at  a  subsequent 
term  of  the  court,  as  might  have  been  had  at  the  term  at 
which  the  writ  is  returnable."  * 


DEFENSES  TO  THE  PROCEEDING. 

The  statute  provides  that  "defendant  may  plead,  traversing 
the  facts  stated  in  the  affidavit  upon  which  the  attachment 
issued,  which  plea  shall  be  verified  by  affidavit;  and  if,  upon 
the  trial  thereof,  the  issue  shall  be  found  for  the  plaintiff, 
the  defendant  may  plead  or  demur  to  the  action  as  in  other 
cases,  but  if  found  for  the  defendant,  the  attachment  shall  be 
quashed,  and  the  costs  of  the  attachment  shall  be  adjudged 
against  the  plaintiff,  but  the  suit  shall  proceed  to  final  judg- 
ment as  though  commenced  by  summons."  ^ 

No.  219.     Plea  in  abatement  of  the  writ. 

In  the Court.  Term,  18—. 

C.  D.    ) 
ats.     >  Attachment. 

A.  B.  )  And  the  defendant,  by  G.  H. ,  his  attorney,  comes  and  defends, 
etc,  and  prays  judgment  of  the  said  writ,  and  that  the  same  may  be 
quashed,  because  he  says  that  [here  traverse  the  allegations  of  the  affidavit). 
And  of  this  the  defendant  puts  himself  upon  the  country,  etc.^ 

At  common  law,  the  filing  of  a  plea  in  bar,  before  a  plea  in 
abatement  w^as  disposed  of,  was  a  waiver  of  a  plea  in  abate- 
ment. But  while  this  plea  is  called  a  plea  in  abatement,  and 
for  most  purposes  is  governed  by  the  rules  applicable  to  such 
pleas,  yet  under  such  practice  the  issue  presented  b}^  a  plea  to 
a  "writ  of  attachment  is  not  waived  by  filing  pleas  in  bar  to 
the  cause  of  action  set  forth  in  the  declaration.  They  should 
all  be  submitted  to  the  same  jury.* 

A  plea  in  abatement  of  an  attachment  writ  should  conclude 

1  Starr  &  Curtis,  320;  Rev.  Stat.  *  See  Bates  v.  Jenfcins,  Breese,  411; 

(1883),  172;  Rev.    Stat.    (1895),    176;  White  \.\ViUon,bGi\m.  21;  Walker 

Firebaugh  v.  Hall,  63  111.  81.  v.  Welsh,  13  111.  674;  Eddy  v.  Brady, 

^S>ee  Bates  y.  Jenkins,  Breese,  4:11;  16    111.    306;   Pulliam  v.    Nelson,  28 

Boggs  v.  Bindskoff,  23  111.  67;   Law-  111.   113;    Hawkins  v.    Albright,   70 

rence  v.   Steadman,  49  111.  270;  see  111.  88. 

Hawkins   v.    Albright,   70   111.    88;  *  Hawkins  v.  Albright,  10111.88. 
Schwabacher  v.  Rush,  81  III.  310. 


ATTACEMENT.  385 

to  tbe  country,  cancl  issue  is  joined  thereon  by  adding  the  com- 
mon similiter. 

The  burden  of  proof  is  on  the  plaintiff' to  maintain  the  alleo-a- 
tions  of  his  aflidavit;  and  if  the  finding  on  such  issue  is  for 
the  defendant,  the  writ  is  to  be  quashed.'  It  was  formerly 
the  practice,  in  such  event,  to  abate  the  suit,"  but  the  statute 
(the  section  last  above  quoted),  now  provides  that  the  suit 
shall  proceed  to  final  judgment  as  though  commenced  by 
summons. 

A  plea  which  avers  that  the  defendant  was  not  a  non-resi- 
dent at  the  time  the  writ  issued,  is  sufficiently  certain, 
when  it  appears  that  the  affidavit  was  made  the  same  day  the 
writ  issued.^ 

Where  an  affidavit  for  attachment  set  out  as  ground  there- 
for, that  the  defendant  "  has,  within  two  years  last  past, 
fraudulently  conveyed  or  assigned  his  property  or  effects,  so 
as  to  hinder  and  delay  his  creditors,"  and  the  defendant 
pleaded  in  abatement  that  he  "  has  not  within  two  years  last 
]iast  fraudulently  conveyed  or  assigned  his  property  with 
intent  to  hinder  and  delay  his  creditors,"  the  plea  was,  on 
demurrer,  held  to  be  bad  because  it  failed  to  deny  that  the  de- 
fendant had,  within  two  years  before  the  commencement  of 
the  suit,  fraudulently  disposed  of  his  property.* 

Practice  and  pleadings.  —  Section  26  provides  that  the 
practice  and  pleadings  in  attachment  suits,  except  as  other- 
wise provided  by  the  statute  in  relation  to  attachments,  are  to 
conform,  as  nearly  as  may  be,  to  the  practice  and  pleadings  in 
other  suits  at  law.* 

An  attachment  suit  will  not  abate  b}"  the  death  of  the  sole 
defendant,  but  survives  against  his  administrator." 

^Ridgwmj  v.  Smith,    17  111.    33;  ^  Parson  v.  Case,  45  1]].  2%. 

Lawrence  X.   Steadman,  A%  IW .  210;  *  McFarland  v.  Claypool,   128  III. 

See   White  v.   Wilson,   5   Gilm.  21;  397. 

Walker  Y.Welsh,  mill  61-i\  Eddy  V.  ^  gtarr  &  Curtis  320;  Rev.    Stat. 

Brady,  16  111.  306;  PulUamv.  Xelson,  (1893)  172;  Rev.  Stat.  (1895)  176;  see 

28  111.  113;  Han-kins  v.  Albright,  70  Edwards  v.  Haring,  59111.  App.  147; 

111.  88.  Ilecht  V.  Feldman,  153  111.  390;  Bank 

^Lawrerice  v.  Steadman,    49    111.  v.  Byram,  131  111.  92. 

270;  see  Boggs  v.  Bindskoff,  23  111.  ^  Doiv  v.  Blake,  148  111.  76;  Sharpe 

67;  Bates  v.  Jenkins,  Breese,  411  v.  Morgan,  144  111.  382. 
25 


380  ATTACHMENT. 

A  defendant  may  avail  himself  of  any  set-off  properly  plead- 
able by  the  laws  of  the  state.' 

By  simply  appearing  and  pleading",  a  defendant  can  not  have 
an  attachment  dissolved.  This  can  only  be  effected  by  giving 
bond  and  security,  as  required  by  the  statute.' 

A  defendant  is  not  required  to  plead  to  the  affidavit  for  an 
attachment  in  aid,  until  a  term  of  the  court  commencing  not 
less  than  ten  days  after  the  attachment  is  sued  out;'  and  the 
issue  made  by  traversing  the  affidavit  can  not,  without  the 
plaintiff's  consent,  be  tried  before  the  first  term  of  court  at 
which  the  writ  could  properly  be  made  returnable." 

Fortliconiing  bond,  etc. — The  statute  provides  (section  14) 
that  "  the  officer  serving  the  writ  shall  take  and  retain  the 
custody  and  possession  of  the  property  attached,  to  answer  and 
abide  by  the  judgment  of  the  court,  unless  the  person  in  whose 
possession  the  same  is  found,  shall  enter  into  bond  and  secu- 
rity to  the  officer,  to  be  approved  by  him,  in  double  the  value 
of  the  property  so  attached,  with  condition  that  the  said  estate 
and  property  shall  be  forthcoming  to  answer  the  judgment  of 
the  court  in  said  suit.  The  sheriff,  or  other  officer,  shall  re- 
turn such  bond  to  the  court  in  which  the  suit  is  brought,  on 
the  first  day  of  the  term  to  which  the  attachment  is  return- 
able." ' 

Bond  or  recognizance  to  cover  the  judgment,  etc. — The 
statute  further  provides  (section  15>  that  "  any  defendant  in  at- 
tachment, desiring  the  return  of  property  attached,  may,  at 
any  time  except  in  term  time,  at  his  option,  instead  of  or  in 
substitution  for  the  bond  required  in  the  preceding  section, 
give  like  bond  and  security,  in  a  sura  sufficient  to  cover  the 
debt  and  damages  sworn  to  in  behalf  of  the  plaintiff,  with  all 
interest,  damages  and  costs  of  suit,  conditioned  that  the  defend- 
ant will  pay  the  plaintiff  the  amount  of  the  judgment  and  costs 
which  may  be  rendered  against  him  in  that  suit,  on  a  final 
trial,  within  ninety  days  after  such  judgment  shall  be  ren- 
dered. In  term  time,  a  recognizance,  in  substance  as  afore- 
said, may  be  taken  in  open  court,  and  entered  of  record,  in 
which  case  the  court  shall  approve  of  the  security  and  the  re- 

'1  Starr  &  Curtis  323;  Rev.  Stat.  ♦  Hecht  v.  Feldman,  153  111.  390. 

(1893)  173;  Rev.  Stat.  (1895)  177.  *  1  Starr  &  Curtis  316;  Rev.  Stat. 

"^Martin  v.   Dryden,  1  Gilm.  187;  (1893)  171;  Rev.   Stat.  (1895)  175;  see 

Conn  V.  Caldwell,  1  Gilm.  531.  Williamson  v.    Hogan,  46  111.  504; 

«  Crandall  v.  Birge,  61  111.  App.  Roberts  v.  Dunn,  71  111.  46;  Turner 

234.  V.  Armstrong,  9  Bradw.  24. 


ATTACHMENT.  3S7 

cognizance  made  to  the  plaintiff,  and  upon  a  forfeiture  of  such 
recognizance,  judgment  ma}^  be  rendered  and  execution  issued' 
as  in  other  cases  of  recognizance.  In  either  case  the  attach- 
ment shall  be  dissolved,  and  the  property  taken  restored,  and 
all  previous  proceedings,  either  against  the  sheriff  or  against 
the  garnishees,  set  aside,  and  the  cause  shall  proceed  as  if  the 
defendant  had  been  seasonably  served  with  a  writ  of  sum- 
mons." ' 

The  purpose  and  effect  of  giving  a  recognizance  by  the  de- 
fendant in  attachment,  as  provided  in  section  15  of  the  at- 
tachment act,  is  to  enable  the  defendant  to  obtain  control  of 
the  property  attached  or  in  the  hands  of  garnishees,  upon  giv- 
ing security  for  the  payment  of  the  judgment  to  be  recovered 
in  the  attachment  suit.  Upon  giving  the  bond  or  recognizance, 
the  case  proceeds  in  personam,  and  the  judgment  entered  is  a 
personal  judgment,  the  recognizance  standing  as  security  for 
its  payment." 

Interpleader  by  a  third  party,  claiming  the  property  at- 
tached.— Section  29  provides  that  "  In  all  cases  of  attachment, 
any  person,  otli.er  than  the  defendant,  claiming  the  property 
attached,  may  interplead,  verifying  his  jilea  by  affidavit,  with- 
out giving  bail,  but  the  property  attached  shall  not  thereby 
be  replevied;  and  the  court  shall  immediately  (unless  good 
cause  be  shown  by  either  party  for  a  continuance)  direct  a  jury 
to  be  impaneled  to  inquire  into  the  right  of  property;  in  all 
cases  where  the  jury  find  for  a  claimant,  such  claimant  shall 
be  entitled  to  his  costs;  and  where  the  jury  find  for  the  plaint- 
iff in  the  attachment,  such  ])laintiff  shall  recover  his  costs 
against  such  claimant.  If  such  claimant  is  a  non-resident  of 
the  state  he  shall  file  security  for  costs  as  in  case  of  non-resi- 
dent plaintiff."  ' 

The  right  of  interpleader  extends  to  real  as  well  as  per- 
sonal property  attached."  The  interpleader  should  be  inter- 
posed while  the  attachment  suit  is  still  in  Ji3ri,  which  is  before 

'  1  Starr  &  Curtis   317;  Rev.  Stat.  Ins.      Co.    v.    Banh,    68    111.    348; 

(1893)  171;  Rev.  Stat  (1895)  175;  see  Meadowcraft  v.    Agneic,  89  111.  469; 

People  V.    Cameron,    2  Gilm.    468;  James  v.  Dexter,  113  111.  654:  Ripley 

Eimer  v.  Richards,  35  111.  289;  Hill  v.  Bank,  18  Bradw.  430;  Fancell  v. 

V.  Harding,  93  111.  77.  Jenkins,  18  Bradw.  491;  Juilliard  v. 

'  Sharpe  v.  Morgan,  144  111.  383.  May,  130  111.  87. 

3 Starr  &  Curtis,  332;    Rev.  Stat.  *Bostwick    v.  Blake,   145  111.   85; 

(1893),  173;    Rev.    Stat.    (1895),    177;  Ducker  v.  Wear,  145  111.  653. 
see    Purcell  v.    Steele,    13    111.   93; 


3SS  ATTACHMENT. 

or  (luring  tlie  term  at  which  final  judgment  is  entered  against 
the  defendant  in  attachment.'  If  it  is  not  filed  in  apt  time 
the  ])laintiff  should  move  to  strike  it  from  the  fdes.'  The  only 
question  under  the  interpleader  is  the  title  to  the  pro])erty  in 
dispute,  and  upon  this  the  burden  of  proof  is  on  the  inter- 
pleader.* 

No.  220.    Plea  hy  a  third  person,  claiming  the  property. 

In  the Court. 

Term,  18—. 

A.  B.  ) 

vs.     y  Attachment. 

C.  D.  )  And  J.  K.,  by  L.  M.,  his  attorney,  comes  and  interpleads, 
according  to  the  form  of  the  statute  in  such  case  made  and  provided,  and 
says,  that  the  goods  and  chattels  {or  "  parcel  of  the  goods  and  chattels,  to 
wit."  describing  them,)  attached  and  seized  by  virtue  of  the  said  vprit  of  at- 
tachment, in  this  behalf,  were  at  the  time  the  same  were  so  attached  and 
seized,  and  still  are.  the  property  of  him,  the  said  J.  K.,  and  not  of  the  said 
C.  D.:  And  this  the  said  J.  K.  is  ready  to  verify:  wherefore  he  prays  judg- 
ment if  his  said  goods  and  chattels  ought  to  be  detained  by  virtue  of  the 
said  writ,  etc. 

{Add  affidavit,  as  under  last  precedent.) 

ATTACHMENT    IN    AID    OF    SUIT. 

Sections  31,  32  and  33  of  the  statute  provide  that  "  the 
plaintiff  in  any  action  of  debt,  covenantor  trespass,  or  on  the 
case  uyion  promises,  having  commenced  an  action  by  summons 
or  capias,  may  at  any  time  pending  such  suit,  and  before  judg- 
ment therein,  on  filing  in  the  ofhce  of  the  clerk  where  such 
action  is  pending  a  sufficient  bond  and  affidavit  showing  his 
rio-ht  to  an  attachment  under  the  first  section  of  this  act,  sue 
out  an  attachment  against  the  lands,  goods,  chattels,  rights, 
moneys,  credits  and  effects  of  the  defendant,  which  said  at- 
tachment shall  be  entitled  in  the  suit  pending,  and  be  in  aid 
thereof;  and  such  proceedings  shall  be  thereupon  had  as  are 
required  or  permitted  in  original  attachments,  as  near  as  may 
be :  *  Provided,  this  section  shall  not  apply  to  actions  in  which 
the  defendant  has  been  arrested  and  has  given  special  bail. 
And  provided  further.,  that  In  all  actions  of  trespass,  and  tres- 
pass on  the  case,  before  a  writ  of  attachment  shall  be  issued, 

^Jidliardv.  May,  130  111.  87.  Bank   v.  Nevman,  55  111.  App.  534; 

^Jiaiiardv.  May,  130  111.  87.  Bosticick  v.  Blake,  145  111.  85. 

« Marshall  V.Cunningham,  13  111.  *  Schnlenherg  v.    Faricell,   84  111. 

20;  Dexter  v.  Perkins,   23  111.    143;  400;  Leopold  v.  Steele,   41  111.  App. 

Merrick  v.  Davis^  65  111.  319;  Comvi.  17. 


ATTACHMENT.  389 

the  plaintiflP,  his  agent  or  attorney,  shall  apply  to  a  judo^e  of  a 
court  of  record  or  a  master  in  chancery  of  the  county  in 
which  the  suit  is  pending,  and  be  examined,  under  oath,  by  such 
judge  or  master  concerning  the  cause  of  the  action;  and  there- 
upon such  judge  or  master  shall  indorse  upon  the  affidavit 
the  amount  of  damages  for  which  the  writ  shall  issue,  and  no 
greater  amount  shall  be  claimed. 

"  In  all  cases  when  a  scire  facias  shall  be  sued  out  of  any 
court  of  this  state,  to  make  any  person  party  to  any  judgment 
that  has  been  or  hereafter  may  be  rendered  therein,  writs  of 
attachment  may  be  issued  in  aid  thereof,  against  any  one  or 
all  persons  named  in  such  scire  facias^  to  any  county  of  this 
state,  upon  the  terms  provided  in  this  act;  and  the  parties  in 
such  writs  of  attachment  may  be  brought  in  by  notice,  as  in 
other  cases  of  attachment,  when  personal  service  can  not  be 
had. 

"  Upon  the  return  of  attachments  issued  in  aid  of  actions 
pending,  unless  it  shall  appear  that  the  defendant  or  defend- 
ants have  been  served  with  process  in  the  original  cause,  notice 
of  the  pendency  of  the  suit,  and  of  the  issue  and  levy  of  the 
attachment,  shall  be  given  as  is  required  in  cases  of  original 
attachment;  and  such  notification  shall  be  sufficient  to  entitle 
the  plaintiff  to  judgment,  and  the  right  to  proceed  thereon 
against  the  property  and  estate  attached,  and  against  gar- 
nishees, in  the  same  manner  and  with  like  effect  as  if  the  suit 
had  been  commenced  by  attachment."  ' 

No.  221.    Affidavit  for  attachment  in  aid  of  action  of  assumpsit,  debt  or 

covenant. 

In  the Court. 

A.  B.  ) 
vs.    V  Assumpsit. 

C.  D.  )      The  said  A.  B. ,  plaintiff,  makes  oath  and  says,  that  the  said  C. 

D.,  defendant,  is  indebted  to  liim,  tlie  said  A.  B.,  in  the  sum  of  dollars, 

(after  allowing  all  just  credits,  deductions  and  set-offs.)  for  {here  set  forth 
the  natiire  of  the  debt);  and  that  the  said  C.  D.  {here  set  forth  one  or  more 
of  the  causes  mentioned  in  the  statute.)    And  this  affiant   further  says, 

that  the  place  of  residence  of  the  said  C.  D.  is {or  "  is  unknown 

to  this  affiant,  and  upon  diligent  inquuy  he  has  not  been  able  to  ascertain 
the  same  "). 


Subscribed  and  sworn,  etc. 


A.  B. 


'1  Starr  &  Curtis  323-324;    Rev.  Butcher    v.    Crou-etl,    5  Gilm.  445; 

Stat.  (189.3)  173;  Rev.  Stat.  (1895)  177;  Schulcnberg  v.  Furu-ell,  84  III.  400; 

see -Beec/ier  V.   James,  2  Scam.    4G2;  Roberts  v.  Dunn,  11  III.  iQ;  Wassou 

Ryder   v.    Glover,    3     Scam.    548;  v.  Cone,  86  ill.  46. 


890  ATTACHMENT. 

When  made  by  an  agent  or  attorney,  the  affidavit  should 
commence  in  this  manner :  "  E.  F.,  of,  etc.,  makes  oath  and 
says  that  he  is  the  agent  {or  'attorney')  in  this  behalf  of  the 
said  A.  B.,  plaintiff;  and  that  the  said  C.  I),  is  indebted  to  the 
said  A.  B.,"  etc. 

No.  222.    Affidavit  for  aftachment  in  aid  of  action  of  tresjyass  or  case. 

In  the Court. 

A.  B.  ) 
vs.     >■  Trespass. 

C.  D.  )  The  said  A.  B.,  plaintiff,  makes  oath  and  says,  that  (here  set 
forth  the  nature  and  cause  of  the  action,  with  the  substantial  facts  in  rela- 
tion thereto).  And  this  affiant  further  says  that  the  amount  of  his  damages 
can  not  be  definitely  stated,  but  he  believes  he  has  sustained  damages  in  this 

behalf  to  the  amount  of dollars.     And  this  affiant  further  says  that  the 

said  C.  D.  {here  set  forth  the  cause  for  the  attachment.)    And  this  affiant 

fuither  says  that  the  place  of  residence  of  the  said  C.  D.  is {or  "  is 

unknown  to  this  affiant,  and  upon  diligent  inquiry  he  has  not  been  able  to 

ascertain  the  same  "). 

A.  B. 

Subscribed  and  sworn,  etc. 

See  the  remark  under  the  last  precedent. 
The  facts  constituting  the  cause  of  action  should  be  set 
forth  substantially  as  in  a  declaration. 

No.  223.     Judge's  or  master's  order,  to  be  indorsed  on  the  affidavit. 

The  affiant  having  been  examined  on  oath,  before  me,  concerning  the 

cause  of  action  within  set  forth,  let  the  attachment  issue  for  the  sum  of 

dollars. 

{Date.) 

R.  S.,  Judge. 

To  L.  M.,  Clerk,  etc. 

Service. — "Where  the  defendant  is  properly  served  in  the 
original  suit,  no  service  is  required  in  an  attachment  in  aid.' 

Judgment  when  the  defendant  is  not  personally  served, 
etc. — Section  35  jirovides  that  "  when  the  defendant  shall  be 
notified  as  aforesaid,"  (by  advertisement,)  "  but  not  served 
with  process,  and  shall  not  appear  and  answer  the  action,  judg- 
ment by  default  may  be  entered,  which  may  be  proceeded  upon 
to  final  judgment  as  in  other  cases  of  default,  but  in  no  case 
shall  judgment  be  rendered  against  the  defendant  for  a  greater 

^Bailey  v.  Valley  Bank,  137  111.  333;  Rutledge  v.  Stribling,  36111.  App.  353. 


ATTACHMENT.  391 

sum  than  appears,  by  the  affidavit  of  the  plaintiff,  to  have 
been  due  at  the  time  of  obtaining  the  attachment,  with  inter- 
est, damages  and  costs;  and  such  judgment  shall  bind,  and  a 
special  execution  shall  issue  against  the  property,  credits  and 
effects  attached,  and  no  execution  shall  issue  against  any  other 
property  of  the  defendant;  nor  shall  such  judgment  be  any 
evidence  of  debt  against  the  defendant  in  any  subsequent 
suit,"  ' 

To  give  the  court  jurisdiction  where  there  is  no  personal 
service,  it  is  indispensable  that  the  writ  be  either  levied  upon 
property  or  served  upon  garnishees  having  effects  or  credits 
in  their  possession  belonging  to  the  defendant.* 

Sale  of  property  on  execution. — Section  36  provides  that 
the  property  attached  maybe  levied  upon  by  execution  issued 
in  the  attachment  suit,  whether  in  the  hands  of  the  officer  or 
secured  by  bond  as  provided  in  this  act,  and  shall  be  sold  as 
other  property  levied  upon  by  execution.^ 

Division  of  proceeds,  etc. — Section  37  provides  that  "all 
judgments  in  attachments  against  the  same  defendant,  return- 
able at  the  same  term,  and  all  judgments  insults  by  summons, 
capias  or  attachment  against  such  defendant,  recovered  at  that 
term  or  at  the  term  when  the  judgment  in  the  first  attach- 
ment upon  which  judgment  shall  be  recovered  is  rendered, 
shall  share  2?ro  rata^  according  to  the  amount  of  the  several 
judgments,  in  the  proceeds  of  the  property  attached,  either  in 
the  hands  of  a  garnishee  or  otherwise :  Provided,  when  the 
property  is  attached  while  the  defendant  is  removing  the  same, 
or  after  the  same  has  been  removed,  from  the  county,  and  the 
same  is  overtaken  and  returned,  or  while  the  same  is  secreted 
by  the  defendant,  or  put  out  of  his  hands,  for  the  purpose  of 
defrauding  his  creditors,  the  court  may  allow  the  creditor  or 
creditors  through  whose  diligence  the  same  shall  have  been 
secured  a  priority  over  other  attachments  or  judgment  cred- 
itors." * 

» 1  Starr  &  Curtis  324;  Rev.  Stat  (1893),    174;    Rev.   Stat.    (1895),  178; 

(1893),  174;  Rev.  Stat.  (1895),  178.  see  Sav.  Inst.  v.  Givens,  82  111.  157. 

2  Clymore  v.  Williams,  ll  111.  618;  Gregory  v.  Gover,  19  111.  608;  Smith 
Borders  v.  Murphy,  78  IlL  81;  Mar-  v.  Bridge  Co.,  13  Bradw.  572;  hank 
tin  v.  Dt-yden,  1  Gilm.  187;  Schorer  v.  Bank  Co.,  114  111.  483;  Smith  v. 
v.Pettibone,  58m.  App.iSQ;  Tennent  Reeve,  113  III  41;  Kennedy  v.  Wikoff, 
v.  Hargardin,  58  111.  App.  368.  21  111.  App.  277;  Donk  v.  Alexander, 

3  See  Clymore  v,  Williams,  77  111.  117  111.  330;  Locke  v.  Duncan,  53 
618.  111.  App.  373;  Everingham  v.  Bank, 

4  1  Starr  &  Curtis,  325;  Rev.  Stat.  124  111.  527. 


392  ATTACHMENT. 

This  section  (37)  does  not  apjiy  to  garnishee  proceedings.' 
Division  by  the  sheriff, etc. — Section  38  provides  that  "upon 
issuing  executions  against  any  property  attached,  the  proceeds 
of  which  shall  be  required  to  be  divided,  the  clerk  shall,  at  the 
same  time,  make  out  and  deliver  to  the  sheriff,  or  other  officer 
to  whom  the  execution  is  issued,  a  statement  of  all  judgments, 
with  the  costs  thereon,  which  shall  be  entitled  to  share  in 
such  proceeds,  and  when  any  judgment  creditor  shall  have 
been  allowed  a  priority  over  the  other  judgment  creditors,  the 
same  shall  be  stated.  "Upon  the  receipt  of  such  proceeds  by 
the  sheriff  or  other  officer,  he  shall  divide  and  pay  over  the 
same  to  the  several  judgment  creditors  entitled  to  share  in  the 
same  in  the  proportion  they  shall  be  entitled  thereto." ' 

Proceeds  brouglit  into'  court. — Section  39  provides  that 
"  the  court  may,  at  any  time  before  the  proceeds  of  any  at- 
tached property  has  been  paid  over  to  the  judgment  credit- 
ors, order  the  whole  or  any  part  thereof  to  be  paid  into  court, 
and  may  make  any  and  all  such  orders  concerning  the  same 
as  it  shall  deem  just."  " 

GARNISHMENT. 

The  statute  upon  "Garnishment"  (Sec.  1)  provides  that 
"whenever  a  judgment  shall  be  rendered  by  any  court  of  rec- 
ord, or  any  justice  of  the  peace  in  this  state,  and  an  execution 
against  the  defendant  in  such  judgment  shall  be  returned  by 
the  proper  officer,  '  JSTo  property  found,'  on  the  affidavit  of 
the  plaintiff,  or  other  credible  person,  being  filed  with  the 
clerk  of  such  court,  or  justice  of  the  peace,  that  said  defendant 
has  no  property  within  the  knowledge  of  such  affiant,  in  his 
possession,  liable  to  execution,  and  that  such  affiant  hath  just 
reason  to  believe  that  any  other  person  is  indebted  to  such 
defendant,  or  hath  any  effects  or  estate  of  such  defendant  in  his 
possession,  custody  or  charge,  it  shall  be  lawful  for  such  clerk 
or  justice  of  the  peace  to  issue  a  summons  against  the  person 
supposed  to  be  indebted  to,  or  supposed  to  have  any  of  the 
effects  or  estate  of  the  said  defendant,  commanding  him  to  ap- 
pear before  said  court  or  justice,  as  a  garnishee;  and  said  court 
or  justice  of  the  peace  shall  examine  and  proceed  against  such 

^  Kennedy  V.  Wikoff,  21   111.  App.  ^  1  Starr  &  Curtis  327;    Rev.  Stat. 

277.  (1893),    174;  Rev.    Stat.   (1895),    178; 

21  Starr  &  Curtis  327;   Rev.  Stat.  see    Breicster    v.    jRi7e?/,  19  Bradw. 

(1893),  174;    Rev.  Stat.    (1895),  178;  581;    Pollack  v.  Slack,   92    111.    221; 

see  Chandler  v.  Mulkmphy,  2  Gilni.  Donk  v.  Alexander,  117  111.  330. 
464;  Heyer  v.  Alexander,  108  111.  385; 
Roofing  Co.  v,  Macey,  115  111.  390. 


ATTACHMENT.  £93 

garnishee  or  frarnisliees,  ia  the  same  manner  as  is  required  by 
law  against  garnishees  in  original  attachments."  ^ 

Only  debts  which  the  judgment  debtor  could  recover  by 
action  at  law  can  be  reached  by  process  of  garnishment.^ 

No.  224.     Affidavit  for  jjrocess  of  garnishment. 

{Venue  and  title  of  cause  as  in  No.  220,  ante,  page  388.) 

A.  B.,  the  plaintiff  in  the  above  entitled  cause,  makes  oath  and  says,  that 
on,  etc. ,  he  recovered  a  judgment  in  this  court  against  the  said  C.  D.  for 

the  sum  of dollare  and  costs  of  suit;  that  on,  etc.,  an  execution  was 

issued  on  said  judgment,  and  delivered  to  the  sheriff  of  said  county,  it  be- 
ing the  county  in  which  the  defendant  then  and  still  resides,  to  execute; 
that  on,  etc.,  said  sheriff  returned  said  execution  •' no  property  found;  " 
affiant  further  states  that  the  said  C.  D.  has  no  property  within  the  af- 
fiant's knowledge,  liable  to  execution;  and  affiant  has  just  reason  to  be- 
lieve that  G.  H.  and  J.  K.  are  indebted  to  the  said  C.  D.,  or  have  effects  or 
estate  of  the  said  C.  D.  in  their  possession,  custody  or  charge. 

A.  B. 
Subscribed  and  sworn  to,  etc. 

Service  and  return  of  summons. — Sections  2,  3  and  4,  pro- 
vide that  "  such  garnishee  summons,  when  issued  by  the  clerk 
of  a  court  of  record,  shall  be  made  returnable,  and  be  served 
as  other  summonses. 

"No  judgment  by  default  shall  be  rendered  unless  such 
process  shall  have  been  served  ten  days  before  the  return  day; 
but  if  such  process  shall  have  been  served  within  less  than  ten 
days,  it  shall  be  deemed  returnable  on  the  first  day  of  the  next 
term  of  the  court.  If  garnishee  process  shall  be  issued  in  term 
time,  it  shall  be  made  returnable  on  the  first  day  of  the  next 
term  of  the  court. 

"  If  such  process  is  issued  by  a  justice  of  the  peace,  it  shall 
be  made  returnable  within  the  same  time,  and  be  served  in  the 
same  manner  as  other  summonses  issued  by  justices  of  the 
peace."  ^ 

Interrogatories  and    answers. — Section   5  provides  that 

'  1  Starr  &  Curtis  1217;  Rev.  Stat.  Chatroop  v.  Borgard,  40  111.    App. 

(1893),  780;     Rev.    Stat.    (1895),  829;  279;   Joseph  v.  Krone,  120  Ind.  495- 

see  R.  R.  Co.  v.  Retjnolds,  72  111.  487;  =*  1  Starr  &  Curtis  1220;  Rev.  Stat. 

Pierce  Y.  Wade,  19  Bradw.  185;  Ins.  (1893)781;  Rev.  Stat.  (1895)  830;  see 

Co.  V.  Connor,  20  Bradw.  297.  Trans.  Co.  v.  Schirmer,  64  III.  106 

^3Iining  Co.  V.Richardson,  SSIU.  Ry.    Co.    v.   Reynolds,  72  111.   487 

App.  280;  Richardson  v.  Lester,  83  Roofing  Co.  v.  Macey,  115  111.  390 

111.  55;  Netter  v.  Board,  12  111.  App.  Ripley  y.  Bank,  18  Bradw.  430. 
607;   Webster  v.  Steele,   75   111.    544; 


394  ATTACHMENT. 

"  when  any  person  is  summoned  as  a  garnishee  upon  any  proc- 
ess of  attachment  or  garnishee  summons  issued  out  of  a  court 
of  record,  the  plaintiff  shall,  at  or  before  tlie  term  at  Avhich  the 
garnishee  is  bound  to  appear,  or  within  such  further  time  as 
the  court  shall  allow,  exhibit  and  file  all  and  singular  such  al- 
legations and  interrogatories,  in  writing,  upon  which  he  shall 
be  desirous  to  obtain  and  compel  the  answer  of  any  and  every 
garnishee,  touching  the  lands,  tenements,  goods,  chattels, 
moneys,  choses  in  action,  credits  and  effects  of  such  defendant, 
and  the  value  thereof,  in  his  possession,  custod}'^  or  charge,  or 
from  him  due  and  owing  to  the  said  defendant  at  the  time  of 
the  service  of  the  said  writ,  or  at  any  time  after,  or  which  shall 
or  may  thereafter  become  due;  and  it  shall  be  the  duty  of 
every  garnishee  to  exhibit  and  file,  under  his  oath  or  affirma- 
tion, within  ten  days  after  he  shall  be  notified  of  the  filing  of 
such  interrogatories,  or  if  no  notice  of  the  filing  of  the  same 
shall  have  been  served  upon  him,  then  on  or  before  the  third 
day  of  the  next  succeeding  term  after  the  term  at  which  such 
interrogatories  are  filed,  full,  direct  and  true  answers  to  all  and 
singular  the  allegations  and  interrogatories  by  the  plaintiff  so 
exhibited  and  filed;  but  in  no  case  shall  the  garnishee  be  com- 
pelled to  answer  before  the  third  day  of  the  return  term  of  the 
garnishee  process."  * 

Until  interrogatories  are  filed,  and  an  opportunity  is  afforded 
to  the  garnishee  to  answer  them,  and  a  conditional  judgment 
taken,  and  a  scire  facias  issued  and  served  (or  notice  given),  a 
final  judgment  can  not  be  rendered.^ 

No.  225.    Interrogatories  to  garnishees. 

In  the Court. 

Term,  18—. 

A.  B.  ) 

vs.    >  Assumpsit. 
CD.)      luteiTogatories  to  be  answered  by  G.  H.,  J.  K  and  N.  O.,  re- 
spectively, as  garnishees  in  this  behalf  : 

1.  Are  you  acquainted  with  the  parties  plaintiff  and  defendant  in  this 
cause? 

2.  Had  you  at  or  after  the  time  of  the  service  of  process  on  you  in  this 
cause,  or  have  you  now,  in  your  possession,  custody  or  charge,  any  lands, 

n  Starr  &  Curtis  1221;  Rev.  Stat.  70  111.  168;  Wilms  v.  Kling,  87  111. 
(1893)  781;  Rev.  Stat.  (1895)  830;  see      107. 

Warnev.  Kendall,  78  111.  598;    Web-  *  Williams  v.    Van  Meter,  19  111. 

ster  V.  Steele,  75  111.  544;  Laidlou  v.  293;  R.  R.  Co.  v.  Keohane,  31  111. 
Hatch,  75  111.  11;  Dieter  v.   Smith,       144;  Cornell  v.    Payne,  115  111.  63; 

Bank  v.  M.  S.  Ass'n,  20  Bradw.  133. 


ATTACHMENT.  395 

tenements,  goods,  chattels,  moneys,  choses  in  action,  credits  or  effects  of 
the  said  C.  D.?  If  yea,  set  forth  fully  and  particularly  the  kind,  number, 
quantity  and  value  thereof  respectively. 

3.  Were  you  at  or  after  the  time  of  the  service  of  such  process  on  you, 
or  are  you  now,  in  any  manner  indebted  to  the  said  C.  D.?  K  yea,  set 
forth  fully  and  particularly  for  what,  how,  and  to  what  amount  you  were 
or  are  so  indebted  to  him. 

{Add  such  interrogatories  as  the  circumstances  may  require.) 

E.  F.,  Attorney  for  Plamtiff. 

No.  226.    Ansioer  of  garnishee. 

In  the Court. 

Term  18—. 

A.  B.  ) 
vs.     V  Assumpsiit. 
C.  D.  \      The  anssvers  of  G.  H.  to  the  interrogatories  propounded  to  him, 
as  garnishee  in  this  behalf,  by  the  said  A.  B.,  plaintiff  : 

1.  To  the  first  inteiTogatory,  the  said  G.  H.  answering  says,  that  {here 
insert  the  matter  of  the  ansicer). 

2.  To  the  second  interrogatory,  the  said  G.  H.,  answering  says,  that, 
etc. 

{Answer  all  the  interrogatories  in  succession  and  add  affidavit  as  fol- 
lows :) 

In  the Court. 

A.  B.  ) 

vs.    |-  Assujnpsit. 
C.  D.  )      G.  H.  makes  oath  and  says,  that  the  foregoing  answers,  by  him 
made,  are  true  in  substance  and  in  fact. 

G.  H. 
Subscribed  and  sworn,  etc. 

If  a  private  corporation  is  made  a  garnishee,  it  may  answer 
by  its  proper  officer  or  agent,  but  the  answer  must  be  under 
oath.' 

Plaintiif  may  contest  the  answer. — Section  7  provides  that 
"  when  the  plaintiff  in  any  garnishee  proceeding  shall  allege 
that  any  garnishee  served  with  process,  or  appearing  before 
any  court,  hath  not  truly  discovered  the  lands,  tenements, 
goods,  chattels,  moneys,  choses  in  action,  credits  and  effects, 
or  if  before  a  justice  of  the  peace  such  personal  effects  of  the 
defendant  in  the  attachment  suit  or  judgment,  and  the  value 
thereof,  in  his  possession,  custody  or  charge,  or  from  him  due 
and  owing  to  the  defendant  at  the  time  of  the  service  of  the  writ, 
or  at  any  time  after,  or  which  shall  or  may  thereafter  become 

Wliver  v.  R.  R.  Co.,  17  111.  587;  Co.  v.  3Jacey,  115  111.  390;  R.  R.  Co. 
Cornellv.  Payne,  115  111.  63;  Rooting      v.  Mason,  11  Bradw.  525. 


396  ATTACHMENT. 

due,  the  court  or  justice  of  the  peace  shall  immediately  (unless 
the  case  shall  for  good  cause  be  continued)  proceed  to  try  such 
cause,  as  against  sucii  garnishee,  without  the  forinality  of 
pleading.  The  trial  shall  be  conducted  as  other  trials  at  law, 
and  if  the  finding  or  verdict  shall  be  against  the  garnishee, 
judgment  shall  be  given  against  him  in  the  same  manner  as  it" 
the  facts  had  been  admitted  by  him,  with  all  costs  of  such 
trial.  If  the  finding  shall  be  in  favor  of  the  garnishee,  he  shall 
recover  his  costs  against  the  plaintiff.  And  in  case  the  gar- 
nishee admits  indebtedness  to  the  judgment  debtor,  he  shall 
not  be  liable  for  costs."  ^ 

The  answer  of  a  garnishee  will  be  consid-ered  as  true  until 
it  is  contradicted  or  disproved.^  It  however  only  makes  a 
case  jprhna  facie  for  the  garnishee,  and  may  be  overcome  by 
preponderating  testimony.^  If  it  is  vague  and  evasive  it 
will  be  construed  most  strongly  against  the  garnishee;*  but 
although  it  may  not  be  strictly  sufficient,  it  will  prevail,  unless 
exceptions  are  taken  to  it  by  demurrer  or  otherwise.^ 

A  ground  of  defense  proved  by  a  garnishee  will  not  avail, 
however  just  in  itself,  unless  it  is  consistent  with  the  allega- 
tions of  his  answer.* 

Garnisliee  may  deduct  demands,  etc.^ — Section  13  of  the 
statute  provides,  that  "  every  garnishee  shall  be  allowed  to 
retain  or  deduct  out  of  the  property,  effects  or  credits  in  his 
hands  all  demands  against  the  plaintiff,  and  all  demands  against 
the  defendant,  of  which  he  could  have  availed  himself  if  he  had 
not  been  summoned  as  garnishee  (whether  the  same  are  at,tbe 
time  due  or  not),  and  whether  by  way  of  set-off  on  a  trial,  or 
by  the  set-off"  of  judgments  or  executions  between  himself  and 
the  plaintiff  and  defendant  severally;  and  he  shall  be  liable  for 
the  balance  only  after  all  mutual  demands  between  himself  and 
the  plaintiff  and  defendant  are  adjusted,  not  including  unliqui- 
dated damages  for  wrongs  and  injuries :  Provided,  that  the 

» 1  Starr  &  Curtis,  1223;  Rev.  Stat.  Mliite,  88  111.  43;  Ri]ppen  v.  Sehoen, 

(1893)  781;  Rev.  Stat.  (1895)  830;  see  92  111.  229. 

Ry.  Co.  V.  Mason,  11  Bradw.  525.  ^  Kergin  v.    Dawson,  1   Gilm.  86; 

^Pierce  v.    Carleton,   12  111.  358;  ScJnoab    v,    Gingenck,    13  111.    697; 

McCoy  V.    Williams,   1   Gilm.  584;  Pierce  v,  Carleton,  12  111.  358;  Eoof- 

People  V.  Johnson,   14  111.  342;  see  ing  Co.  v.  Macey,  115  111.  390. 

Dieter  v.  Smith,  70  111.  168;  Truitt  *  Grain  v.  Gould,  46  111.  293;  Ins. 

V.   Griffin,  61  111.  26;    E.  R.  Co.  v.  Co.  v.  Shimer,  96  111.  580. 

Hindman,  85  111.  521;  R.  R.   Co.  v.  ^  J.  C.  R.  R.  Co.  v.  Cobb.  48111.  402. 

Killenberg,  82  111.  295;  Laschear  v.  « Church  v.  Hyde,  40  111.  150. 


ATTACHMENT.  397 

verdict  or  finding,  as  well  as  the  record  of  the  judgmont,  shall 
show  in  all  cases,  against  which  party,  and  the  amount  thereof, 
any  set-off  shall  be  allowed,  if  any  such  shall  be  allowed."  ' 

Where  a  garnishee  charges  himself  with  a  sum  of  money, 
against  which  he  claims  a  set-off,  he  must  show  the  extent  of 
his  claim,  or  state  facts  from  which  the  court  can  determine 
the  amount.  It  would  be  a  fraud  upon  creditors  to  permit  a 
debtor  to  place  his  propert}^  beyond  their  reach,  by  depositing 
it  wdth  another  person,  to  be  held  nominally  for  future  serv- 
ices or  advances.^ 

Other  claimants  of  effects  in  the  hands  of  c:arnishees. — 
Sections  11  and  12  provide  that  "  If  it  appears  that  any  goods, 
chattels,  choses  in  action,  credits  or  effects  in  the  hands  of  a 
garnishee  are  claimed  by  any  other  person,  by  force  of  an  as- 
signment from  the  defendant,  or  otherwise,  the  court  or  justice 
of  th3  peace  shall  permit  such  claimant  to  appear  and  main- 
tain his  right.  If  he  does  not  voluntarily  appear,  notice  for 
that  purpose  shall  be  issued  and  served  on  him  in  such  man- 
ner as  the  court  or  justice  shall  direct. 

"  If  such  claimant  a])pears,  he  may  be  admitted  as  a  party 
to  the  suit,  so  far  as  respects  his  title  to  the  property  in  ques- 
tion, and  may  allege  and  prove  any  facts  not  stated  or  denied 
bv  the  garnishee,  and  such  allegations  shall  be  tried  and 
determined  in  the  manner  hereinbefore  provided.  If  sucli 
])erson  shall  fail  to  appear  after  having  been  served  with  no- 
tice in  the  manner  directed,  he  shall  nevertheless  be  concluded 
by  the  judgment  in  regard  to  his  claim.'' ^ 

Where  property  has  been  placed  in  the  hands  of  a  person  to 
secure  him  against  loss  by  reason  of  his  becoming  surety  for 
anotlier,  such  property  is  a  pledge,  and  the  person  to  whom  it 
is  pledged  may  retain  it  until  his  liability  as  a  surety  is  extin- 
guished." As  between  the  parties,  an  assignment  without 
notice  by  the  assignee  to  the  holder  of  the  fund  takes  effect, 
and  has  precedence  of  a  subsequent  garnishment  against  the 
assignor." 

'  1  Starr  &  Curtis  1225;  Rev.  Stat.  Stevens  v.  Dillman,  86  111.  233;  Shel- 

(1893)    782;    Rev.    Stat.   (1895)    831;  do?i  v.iy/»/o?i,6  Brad\v.216;  Ins.  Co. 

Rankinv.  Simonds,  21  III.  S52:  R.  R.  v.  Kennedy,  57  111.  App.  136;  Bank 

Co.  V.  R.  R.  Co.,  1  Bradw.  399.  v.  Ncirman,  55111.  App.  534. 

-  Craig  v.  Gould,  46  111.  293.  "  Kergin  v.  Datcson,  1  Gilm.   86; 

n  Starr  &  Curtis,  1225;  Rev.  Stat.  see  Dressor  v.  McCord,  96  111.  389. 
(1893),  782;  Rev.  Stat.  (1895),  831;  see  ^  Gregg  v.  Savage,  51  111.  App.  281; 


398  ATTACHMENT. 

A  garnishee  can  not  protect  himself  by  merely  answering 
that  whatever  debt  he  owes,  or  ma}^  owe,  was  assigned  before 
the  service  of  process  on  him.  The  good  faith  of  the  assign- 
ment must  be  made  to  appear.  It  seems  that  the  alleged 
assignee  may  be  required  to  appear,  on  notice  given  by  the 
garnishee,  and  show  that  the  transaction  was  genuine;  and 
that  if  he  should  fail  to  do  so,  a  judgment  against  the  gar- 
nishee would  be  a  defense  to  any  suit  brought  against  him  by 
such  assignee.' 

Grariiisliee  may  contest  legality  of  proceeding. — A  gar- 
nishee may  inquire  into  the  legality  and  regularity  of  the 
previous  proceedings  against  the  defendant  in  attachment,  in 
order  to  show  that  they  were  unauthorized  and  void.^  In 
respect  to  irregularities  in  the  proceedings  which  amount  to 
mere  error  in  the  controversy  between  the  plaintiff  and  de- 
fendant in  attachment,  the  garnishee  has  no  right  to  complain 
for  he  will  be  protected  in  the  pa^'^ment  of  the  judgment. 
But  where  the  defect  goes  to  the  jurisdiction  of  the  court 
to  act  in  the  premises,  and  the  question  is,  whether  or  not  the 
tribunal  assuming  to  act  has  jurisdiction  of  the  subject-matter 
or  of  the  person  of  the  defendant  in  attachment,  the  rule  is 
otherwise.  If  the  prior  proceedings  are  void  there  is  no  suf- 
ficient basis  to  support  a  judgment  against  the  garnishee,  and 
he  will  not  be  protected  in  paying  the  same.' 

What  is  subject  to  garnishment. — A  debt  which  is  uncer- 
tain and  contingent  and  ma}^  never  become  due  and  payable 
is  not  subject  to  garnishment.^  It  must  be  such  as  to  be  re- 
coverable in  an  action  of  debt  or  indebitatus  assumpsit.^  Equi- 
table interests  in  choses  in  action  can  not  be  reached  by  process 
of  garnishment;'    nor    can   there   properly  be   such  process 

same  case,  150  111.  161 ;  Horn  v.  Booth,  ^  Dennison  v.  Taylor,  142  111.  45. 

22  111.  App.  385.  ■•Drake  on  Att.,  Sec.  551;  Ins.  Co. 

•  Born  V.  Staaden,  24  111.  320;  see  v.  Connor,  20  111.  App.  297. 

Crownover  V.   Bamberg,    2  Brachv.  ^  Capes  v.  Burgess,  135  111.  61. 

W2;  Stevens  V.  Dillman,  SQ  III.  23d;  ^Mayy.    Baker,    15    111.89;    see 

Ray  y.  Faulkner,  73  III.  460.  Hodson  v.  McConneU,  12   111,   170; 

^Pierce  v.    Carleton,  12  111.   358;  Snidery.  Ridgway,i9  m.  522. 
see  Chanute  v.  Martin,  25  111.  63; 
Pierce  v.  Wade,  19  Bradw.  185. 


ATTACHMENT.  399 

against  a  debtor  of  a  garnishee  against  whom  an  execution  has 
been  returned  "  no  property."  ' 

As  a  general  rule,  money  in  the  custody  of  the  law,  or  in 
the  hands  of  an  officer  of  the  law,  is  not  subject  to  process  of 
garnishment.-  Thus,  money  in  the  hands  of  a  sheriff,  which 
has  been  made  on  execution,  or  received  in  redemption  of 
land  sold  on  execution;^  or  money  in  the  hands  of  a  school- 
treasurer,  and  due  to  a  school-teacher;*  or  money  in  the 
hands  of  the  clerk  of  a  court,'  or  an  administrator,"  can  not 
be  reached  by  process  of  garnishment.  But  Avhenever  the 
liability  of  an  officer  becomes  changed,  from  an  official  to  a 
personal  one,  he  is  amenable  to  this  process; '  as  where  there 
is  a  surplus  in  a  sheriif's  hands, after  satisfying  an  execution;* 
or  where  a  special  master  holds  funds  which  have  been  or- 
dered by  the  court  to  be  paid  to  the  debtor.* 

A  municipal  corporation  is  not  liable  to  the  process  of  gar- 
nishment, no  matter  what  may  be  the  character  of  the  debt, 
and  where  such  a  corporation  is  summoned  as  a  garnishee,  it 
may  be  discharged  on  mere  motion,  and  without  answer,  at 
any  time  after  process  served.'"  But  a  private  corporation, 
unlike  a  munitipil  corporation,  being  created  for  private  pur- 
pose, assumes  the  same  duties  and  liabilities  as  a  private  in- 
dividual."    The  wages  of  a  defendant,  being  the  head  of  a 

'/.  C.  Co.  V.  Weaver,  54  111.  319;  374;     Croumover    v.     Bamberg,     2 

Harrell  v.   Wliitman,   19  Ala.    135;  Bradw.  162;  Brooks  v.  Cook,  8  Mas?, 

see  Wilcus  v.  Kling,  87  111.  107.  246;    see    Bartell    v.   Bauman,  12 

« MiUison  v.  Fisk,  43  111.  112;  Biv-  Bradw.  450. 

ensY.Har2)er,5d  111.  21;  THebel  v.  ^Weaver  v.    Davis,    47  111.    235; 

Colburn,  64  111.  376;  Smithy.  Wool-  Lightner  v.    Steinagel,    33  111.  510; 

sey,  22  111.  App.  185.  MiUison  v.  Fisk,  43  111.   112;  Pierce 

^Pierce    v.    CarZe^on,  12  III.  358;  v.  CaHetoi,  12  111.  358. 

Lightner   v.  Steinagel,  d'S  111.    510;  ^Pierce  v.   Carleton,  12  111.    358; 

Weaver  Y.  Davis,  47  111.  235;    Bed-  Bartell  y.  Ban  man,  12  Bradw.  450. 

dick  y.  Smith,  3  Scam.  451 ;  Meadow-  ^  Weaver  v.  Davis,  47  111.  235. 

craft  V.  Agnew,  89  111.  469.  '«  Merwin  v.  Chicago,  45  111.  133; 

*  MiUison  v.  Fisk,  43  111.  112;  Chicago  v.  Hasley,  25  III  5do;  Trie- 
Ross  V.  Allen,  10  N.  H.  96;  Bivens  bel  v.  Colburn,  64  111.  376;  BarteU 
y.  Harper,  59  111.  21.  v.  Bauman,  12  Bradw.  450;  R.  R. 

^Drane  v.  McGavock,  7  Humph.  Co.   v.   R.   R.  Co.,   1   Bradw.     399. 

132;  Smith  v.  Finlen,  23  111.  App.  156.  Fast  v.  Wolf,  38  111.  App.  27. 

^Curling  v.    Hyde,  10    Missouri,  ^Merwin  v.   Chicago,  4.0  lU.  133; 


400  ATTACHMENT. 

faraih",  to  an  amount  not  exceeding  fifty  dollars,  is  exempt 
from  garnishment/ 

Paragraph  34  of  the  garnishment  act  provides  that  when- 
ever, in  any  proceedings  in  any  court  of  this  state  to  subject 
the  wages  due  to  any  person  to  garnishrasnt,  it  shall  appear 
that  such  person  is  a  non-resident  of  the  State  of  Illinois,  that 
the  wages  earned  by  him  were  earned  and  ])ayable  outside  of 
the  state  of  Illinois,  the  said  person,  whose  wages  were  so 
sought  to  be  subjected  to  garnishment,  shall  be  allowed  the 
same  exemption  as  is  at  the  time  allowed  to  him  by  the  laws 
of  the  State  in  which  he  so  resides.^ 

Section  15  of  the  statute  provides  that  no  person  shall  beliable 
as  a  garnishee  by  reason  of  having  drawn,  accepted,  made  or  in- 
dorsed any  negotiable  instrument,  when  the  same  is  not  due, 
in  the  hands  of  the  defendant  at  the  time  of  service  of  the 
garnishee  summons  or  the  rendition  of  the  judgment.^ 

A  stockholder  in  an  incorporated  compan}^  who  owes  the 
company  unpaid  stock,  upon  which  a  call  has  baen  made  and 
notice  given,  is  liable  to  be  garnisheed  on  a  judgment  re- 
covered against  the  company.* 

A  non-resident  creditor  may  proceed  by  attachment  against 
a  non-resident  debtor,  and  garnishee  a  resident  debtor  or  for- 
eign corporation  doing  business  in  this  state."  A  debt  due  in 
another  state  may  be  attached  in  Illinois,  where  the  garnishee 
is  a  resident  of  the  state,  under  the  statute  providing  that  a 
creditor  may  have  an  attachment  against  a  non-resident 
debtor." 

A  corporation,  by  establishing  an^  agency  and  doing  busi- 

Roche  V.  Ass'n,  2  Bradw.  360;   Rij.  Stat.  (1S95),  832;   Rev.    Stat.  (1893), 

Co.  V.  B.  R.  Co., 81  111.  584.  VSS;    Warne  v.  Kendall,  78   III.  598, 

'  Rev.  Stat.  (1895),  832;  Rev.  Stat.  *  Meints  v.  3Till  Co.,  89  111.48;  see 

(1893),  783;  Starr  &  Curtis  1225;  see  Oaschv.  Boat  Co.,  59  111.  App.  391 

Bliss  V.  Smith,  78  111.  359;   Hoffman  Robertson  v.  Moeninger,  20  111.  App. 

V.  Fitzunlliam,  81111.  521;  Fanning  227. 

V.  Bank,  76  111.  53;  R.  R.  Co.  v.  '"  R.  R.  Co.  v.  Dougan,  41  111.  App. 

Mason,  11  Bradw.  525.  543;  R.  R.  Co.  v.  Flannigan,  47  111. 

2  Rev.  Stat.  (1895)  834;  see   Rail-  App.  322;    Line  Co.  v.  Collier,   148 

road  V.  Dougan,  142  111.  248;  R.   R.  111.  259. 

Co.  V.  Barron,  83  111.  365.  «  Pomeroy  v.  Rand,  157  111.  176. 

n    Starr      &    Curtis   1226;    Rev. 


ATTACHMENT.  401 

ness  in  this  state,  becomes  a  resident  and  is  liable  as  a  gar- 
nishee of  its  non-resident  creditors/ 

Unliquidated  damages  are  not  liable  to  garnishment.^ 

A  party  can  not  be  charged  as  garnishee  in  respect  to  prom- 
issory notes  or  other  evidences  of  indebtedness,  which  at  the 
time  of  the  service  of  garnishee  process  and  during  the  pend- 
ency of  the  suit,  are  in  another  state." 

Non-resident  garnishee. — Section  9  provides  that  "  If  any 
garnishee  shall  become  a  non-resident,  or  shall  have  gone  out 
of  this  state,  or  is  concealed  within  this  state  so  that  tlie  scire 
facias  can  not  be  served  upon  him,  upon  the  plaintiff  or  his 
agent  filing  affidavit,  as  in  cases  of  non-resident  defendants  in 
attachment,  such  garnishee  may  be  notified  in  the  same  man- 
ner as  such  non-resident  defendants,  and  upon  such  notice  be- 
ing given,  he  may  be  proceeded  against  in  the  same  manner 
as  if  he  had  been  personally  served  with  such  scire  facias.''''  *' 

Conditional  jndgnient. — Section  8  provides  that  "  When 
any  person  shall  have  been  summoned  as  a  garnishee  upon  any 
attachment  or  other  writ  issued  out  of  any  court  of  record,  or 
by  any  justice  of  the  peace,  and  shall  fail  to  appear  or  make 
discovery,  as  by  this  act  required,  the  court  or  justice  of  the 
peace  may  enter  a  conditional  judgment  against  such  garnishee 
for  the  amount  of  the  plaintiff's  demand,  or  judgment  against 
the  original  defendant,  and  thereupon  a  scire  facias  shall  issue 
against  such  garnishee,  returnable,  if  the  proceedings  be  in  a 
court  of  record,  at  the  next  term  of  court,  or  if  it  be  before  a 
justice  of  the  peace,  within  the  same  time  as  other  summonses 
from  justices  of  the  peace,  commanding  such  garnishee  to  show 
cause  why  such  judgment  should  not  be  made  final.  If  such 
garnishee,  being  served  with  process  or  notified  as  required 
by  law,  shall  fail  to  appear  and  make  discovery  in  the  manner 
aforesaid,  the  court,  or  justice  of  the  peace,  shall  confirm  such 
judgment,  to  the  amount  of  the  judgment  against  the  original 
defendant,  and  award  execution  for  the  same  and  costs.  If 
such  garnishee  shall  appear  and  answer,  the  same  proceedings 
may  be  had  as  in  other  cases."  * 

Final  judgment. — Section  10  provides  that  "  No  final  judg- 

»  Roclie  V.  Ins.  Co.,  2  Bradw.  270;  4  Rgy^  g^at.  (1893)  782;  Rev.  Stat. 

Groverv.  Wells,   40   111.   App.    350;  (1895)  831;  Starr  &  Curtis  1224. 

Henderson  V,  Schaas,   35  111.   App.  'See  Webster ^r.  Steele,  lb  111.544; 

155.  Ry.    Co.  V.   Reynolds,   72    lU.  487; 

■'  Copes  V.  Burgess,  135  111.  61.  Horatv.  Jacket,  59  111.  189;  R.  R.  Co. 

2  Bowen  v.  Pope,  125  111.  28.  v.  Hindinan,  85  IlL  521. 
26 


402  ATTACHMENT. 

ment  sh<all  be  entered  against  a  garnishee  in  any  attacliment 
proceeding  until  the  phiintiff  shall  have  recovered  a  judgment 
against  the  defendant  in  such  attachment."  ' 

In  a  case  where  service  had  been  had  on  the  garnishee,  a 
conditional  judgment  rendered,  interrogatories  tiled,  a  scire 
facias  served,  and,  the  garnishee  failing  to  answer,  final  judg- 
ment was  rendered,  it  was  held  that  it  was  discretionary  in  the 
court  to  set  aside  the  judgment,  and  a  refusal  to  do  so  could 
not  be  assigned  for  error.^ 

The  proper  practice,  in  respect  to  garnishees,  is  to  enter  a 
judgment  against  the  garnishee,  in  favor  of  the  defendant  in 
the  attachment  or  execution  for  the  full  amount  due,  for  the 
benefit  of  such  attaching  and  judgment  creditors  as  are  en- 
titled to  share  in  the  proceeds.  If  the  judgment  exceeds  what 
is  due  to  such  creditors,  the  excess  Avill  be  for  the  benefit  of 
the  defendant  in  the  attachment  or  execution.' 

Death  of  garnishee — Representative  made  party. — Sec- 
tion IS  provides  that  "  In  case  of  the  death  of  a  person  served 
as  garnishee,  his  executor  or  administrator  may  be  made  a 
partv,  and  notified,  unless  his  appearance  is  entered,  as  in  the 
case  of  the  death  of  a  defendant,  and  the  cause  may  proceed 
against  him  as  personal  representative  of  the  deceased."  * 

Eifect  of  judgment  .igainst  garnishee. — Sections  16  and  17 
provide  that  "  The  judgment  against  a  garnishee  shall  acquit 
him  from  all  demands  b}^  the  defendant  for  all  goods,  effects 
and  credits  paid,  delivered  or  accounted  for  by  the  garnishee 
by  force  of  such  judgment. 

"If  the  person  summoned  as  garnishee  is  discharged,  the 
judgment  shall  be  no  bar  to  an  action  brought  against  him  by 
the  defendant  for  the  same  demand."  * 

When  debt  is  not  due,  execution  stayed. — Section  19  pro- 
vides that  "  When  judgment  is  rendered  against  any  garnishee, 
and  it  shall  appear  that  the  debt  from  him  to  the  defendant 

'  Rev.  Stat.  (1893),  783;  1   Starr  &  111.  233;  Ry.  Co.  \.  Mason,  11  Bradw. 

Curtis   1225;    Rev.  Stat.  (1895)   831;  525;  SocZdie  v.  il//g.  Co.,  51  111.  App. 

see  Brickey  v.  Davis,  9  Bradw.  362;  302. 

Crandall  v.  Birge,  61  111.  App.  231.  *1  Starr  &  Curtis  1226;  Rev.  Stat. 

^Ex.Co.v.Bedbiiry,Sim.io9.  (1893)    783;    Rev.    Stat.   (1895)    832; 

^Kern    v.   Brewery,   140    111.   371;  Winkler  ^.  Barthel,  6  Bradw.  111. 

Stahl  V.  Webster,  11  111.  511;  Gilli-  ^See  Allen  v.  Watt,   79  111.   284; 

landv.  Nixon,  26  111.  50;  Webster  v.  Sanburg  v.  Papenean,B\  111.  446;  see 

Steele,  75  111.  544;  Warne  v.  Kendall,  Kennedy  v.  Wikoff,  21  111.  App.  277. 
78  111.  598;  Stevens  v.  Dillman,  8G 


ATTACHMENT.  403 

is  not  3"et  clue,  execution  shall  not  issue  against  him  until 
twenty  days  after  the  same  shall  become  due,  unless  the  party 
asking  the  same,  or  his  agent,  shall  make  oath  that  he  believes 
the  debt  will  be  lost  unless  execution  issue  forthwith,  in  which 
case  execution  shall  issue  as  soon  as  said  debt  to  defendant  is 
due;  but  no  sale  of  property,  under  such  execution,  shall  take 
place  until  after  the  expiration  of  twenty  days  from  date  of 
judgment."  ' 

Lack  of  space  prevents  the  insertion  of  the  remaining  sec- 
tions of  the  attachment  act,  for  which  the  pleader  is  referred 
to  the  statute. 

ATTACHMENT    OF    WATER    CRAFTS. 

For  what  liens  given. — The  statute  of  Illinois'^  provides 
(§  1)  "  That  every  sail  vessel,  steamboat,  steam  dredge,  tug 
boat,  scow,  canal  boat,  barge,  lighter,  and  other  water  craft  of 
above  five  tons  burthen,  used,  or  intended  to  be  used  in  navi- 
gating the  waters  or  canals  of  this  state,  or  used  in  trade  and 
commerce  between  ports  and  places  within  this  state,  or  hav- 
ing their  home  port  in  this  state,  shall  be  subject  to  a  lien 
thereon,  which  lien  shall  extend  to  the  tackle,  apparel  and 
furniture  of  such  craft  as  follows : 

First.  For  all  debts  contracted  by  the  owner  or  part  owner, 
master,  clerk,  steward,  agent  or  shipshusband  of  such  craft,  on 
account  of  supplies  and  provisions  furnished  for  the  use  of  such 
water  craft,  on  account  of  work  done  or  services  rendered  on 
board  of  such  craft  by  any  seaman,  master  or  other  employe 
thereof,  or  on  account  of  work  done  or  materials  furnished  by 
mechanics,  tradesmen  or  others,  in  and  about  the  building, 
repairing,  fitting,  furnishing  or  equipping  such  craft. 

Second.  For  all  sums  due  for  wharfage,  anchorage  or  dock 
hire,  including  the  use  of  dry  docks. 

Third.  For  sums  due  for  towage,  labor  at  pumping  out  or 
raising,  when  sunk  or  disabled,  and  to  shipshusband  or  agent 
of  such  water  craft  for  disbursements  due  by  the  owner  on 
account  of  such  water  craft. 

Fourth.  For  all  damages  arising  for  the  non-performance  of 
any  contract  of  affreightment  or  of  any  contract  touching  the 
transportation  of  property  entered  into  by  the  master,  owner, 
as:ent  or  consicrnee  of  such  water  craft,  where  any  such  con- 
tract  is  made  in  this  state. 

'  1  Starr  &  Curtis  1226;  Rev.  Stat.  Knisely  v.  Parker,  34  111.  481;  F.  R. 

(1893)    832;    Rev.    Stat.    (1893)  783;  Co.  v.  Crane,  102  111.  249;  Joluimn 

Bartellv.  Bauman,  12  Bradw.  451.  v.  P.  E.  Co.,  105  111.  462;  Langdon 

5  Rev.    Stat.  (1895)  179;  1  Starr  &  v.  Wilcox,  107  111.   606;  see  City  v. 

Curtis  334;    Rev.  Stat.    (1893)  177;  Schooner,  17  111.  App.  203. 


404:  ATTACHMENT. 

F'tfth.  For  all  damages  arising  from  injuries  done  to  per- 
sons or  property  by  such  water  craft,  whether  the  same  are 
aboard  said  vessel  or  not,  where  the  same  shall  have  occurred 
through  the  negligence  or  misconduct  of  the  owner,  agent, 
master  or  employe  thereon,  but  said  craft  shall  not  be  liable 
for  any  injury  or  damage  received  by  one  of  the  crew  from 
another  member  of  the  crew." 

Lien  on  goods  for  freight. — The  statute  (§  2)  gives  a  lien 
upon  the  goods,  etc.,  shipped  upon  any  such  water  craft  for 
sums  due  for  freight,  advanced  charges  and  demurrage,  which 
may  be  collected  by  attachment. 

(§  3.)  Limitation.— The  lien  may  be  enforced  at  any  time 
within  five  years;  provided.,  no  creditor  shall  be  allowed  to 
enforce  such  lien  as  against,  or  to  the  prejudice  of  any  other 
creditor  or  subsequent  incumbrancer,  or  lona  fide  purchaser, 
unless  the  lien  is  enforced  within  nine  months. 

Petition,  bond,  etc. — Section  4  provides  that  "the  per- 
son claiming  to  have  a  lien  may  file  with  the  clerk  of  any 
court  of  record  of  competent  jurisdiction  in  the  county  where 
any  such  water  craft  may  be  found,  a  petition  setting  forth 
the  nature  of  his  claim,  the  amount  due,  after  allowing  all 
payments  and  just  offsets,  the  name  of  the  water  craft,  the 
name  and  residence  of  each  owner  known  to  the  petitioner; 
and  when  any  owner  or  his  place  of  residence  is  not  known  to 
the  petitioner,  he  shall  so  state,  and  that  he  has  made  inquiry 
and  is  unable  to  ascertain  the  same;  which  petition  shall  be 
verified  by  affidavit  of  the  petitioner  or  his  agent  or  attorney. 
If  the  claim  is  upon  an  account  or  instrument  in  writing,  a 
cop}''  of  the  same  shall  be  attached  to  the  petition." 

No.  227.    Petition  for  an  attachment  against  a  water  craft. ^ 

In  the Court, 

Term,  A.  D.  18— 

To  the  Honorable Court  of  the  county  of ,  in  the  State  of  Illinois: 

The  petitioner,  A.  B.,  of,  etc.,  respectfully  represents — 

That  C.  D. ,  who  resides  at,  etc.  {giving  the  residence),  is  the  owner  of  a 

certain  water  craft  of  above  five  tons  burthen,  called   the" ;" 

that  he  is  justly  indebted  to  the  petitioner  in  the  sum  of dollars,  after 

allowing  all  just  credits,  deductions  and  set-offs,  on  account  of,  etc.  {here 

insert  the  nature  of  the  claim);  for  which  the  petitioner  claims  a  lien  upon 

such  water  craft,  pursuant  to  the  provisions  of  the  statute  of  this  state.    He 

therefore  pravs  for  an  attachment  of  such  water  craft. 

A.  B. 

1  See  Schooner  v.  Woodivorth,  1  Scam.  511;  Mulligan  v.  Buck,  65  111.  425; 
Norway  v.  Jansen,  53  111.  373. 


ATTACHMENT.  405 

State  of  Illinois,  ) 

County  of .    p^' 

A.  B. ,  on  oath  states,  that  the  foregoing  petition  by  him  subscribed,  is 
true  in  substance  and  in  fact. 

A.  B. 
Subscribed  and  sworn,  etc. 

If  the  owner  or  his  place  of  residence  is  not  known  to  the 
petitioner,  and  he  has  been  unable,  upon  inquiry,  to  ascertain 
the  same,  the  following  form  may  be  sufficient : 

No.  22S.    Petition  for  attachment  against  a  water  craft  where  the  name  of 
the  owner  is  unknown. 

(Title  of  cotirt,  and  address,  as  in  last  precedent.) 
The  petitioner,  A.  B.,  of,  etc.,  respectfully  represents — 
That  he  performed  services  as  an  engineer  on  board  of  a  water  craft 
(of  above  five  tons  burthen),  named  the  "Water  Witch,'^  from  the  —  day 

of ,  18—,  until  the  —  day  of ,  18—;  {or  stating  any  other  claim;)  for 

which  he  is  justly  entitled  to  the  sum  of dollars,  after  allowing  all  just 

credits,  deductions  and  setoffs;  that  the  name  of  the  owner  or  owners  of 
such  water  craft,  or  his  or  their  place  of  residence  is  or  are  unknown  to  the 
petitioner;  that  he  has  made  inquiry  and  is  unable  to  ascertain  the  same. 
That  the  petitioner  claims  a  lien  upon  said  water  craft,  and  prays  for  an  at- 
tachment of  such  water  craft,  in  pursuance  of  the  statute  of  this  state. 

A.  B. 
(Add  affidavit.) 

The  petitioner,  or  his  agent  or  attorney,  is  required  to  file 
with  the  petition  a  bond  in  at  least  double  the  amount  of  the 
claim,  as  required  by  the  statute. 

The  sixth  section  of  the  statute  provides  for  the  issuing  of 
attachment.  The  seventh  section  prescribes  the  form  of  the 
writ,  and  the  eighth  section  directs  how  the  writ  shall  be  exe- 
cuted and  returned. 

Section  9  provides  that  whenever  any  such  writ  shall  be 
issued  and  served,  no  other  attachment  shall  issue  against  the 
said  water  craft,  unless  the  first  attachment  is  discharged,  or 
the  vessel  is  bonded. 

Notice  by  publication. — (§  10.)  "  Upon  return  being  made 
to  such  writ,  unless  the  vessel  has  been  bonded,  as  hereinafter 
provided,  the  clerk  shall  immediately  cause  notice  to  be  given, 
in  the  same  manner  as  required  in  other  cases  of  attach- 
ment." '  The  notice  shall  contain,  in  addition  to  that  required 
in  other  cases  of  attachment,  a  notice  to  all  persons  to  intervene 

'  See  page  — ,  ante. 


406  ATTACHMENT. 

for  their  interests  on  a  day  certain,  or  that  said  claim  will  be 
heard  ex  j^ffi't^- 

Intervening  creditors. — Section  11  provides  that  "any 
person  having  a  lien  upon  or  any  interest  in  the  water  craft  at- 
tached, may  intervene  to  protect  such  interest,  by  tiling  a  peti- 
tion as  hereinbefore  provitled,  entitled  an  intervening  petition; 
and  any  person  interested  may  be  made  a  defendant  at  the  re- 
quest of  himself,  or  any  party  to  the  suit,  and  may  defend  any 
petition  by  filing  an  answer  as  hereinafter  provided,  and  giving 
security  satisfactory  to  the  court,  to  pay  any  costs  arising  from 
such  defense;  and  upon  the  tiling  of  any  intervening  petition, 
a  summons,  as  hereinafter  provided,  shall  issue;  and  if  the 
same  shall  be  returned  not  served,  notice  by  publication  may 
be  given  as  aforesaid;  and  several  intervening  petitioners  may 
be  united  with  each  other,  or  the  original,  in  one  notice." 

By  section  12,  an  intervening  petitioner  is  required  to  file 
a  bond,  as  in  case  of  an  original  attachment.  Section  13  pro- 
vides that  intervening  petitions  may  be  filed  at  any  time  be- 
fore the  vessel  is  bonded,  or  if  not  bonded,  before  order  of 
distribution.  And  by  section  14,  all  liens  which  shall  not  be 
filed  before  sale  under  decree  or  judgment,  shall  cease. 

Bonding  vessel. — Under  section  15,  the  owner,  or  his  agent 
or  attorney,  or  any  person  interested  in  the  craft,  desiring  a 
return  thereof,  by  giving  proper  notice,  etc.,  may  bond  said 
vessel  and  have  the  same  returned. 

Appraisement — Restitution — Sale. — The  owner,  etc.,  may 
have  the  vessel  appraised  under  section  16,  and  by  depositing 
the  appraised  value,  or  giving  bond,  may  have  restitution,  and 
if  such  claimant  shall  decline  any  such  application,  or  neglect 
within  twenty  daj^s  to  accept  the  appraisement  and  make  de- 
posit, or  give  bond,  or  if  the  property  seized  shall  be  liable  to 
decay,  depreciation  or  injury  from  delay,  the  court  may  order 
the  same  sold,  and  the  proceeds  brought  into  court  to  abide 
the  event  of  the  suit. 

By  section  17,  the  clerk  is  required,  upon  receiving  a  bond 
or  deposit,  to  issue  an  order  of  restitution,  and  under  the  18th 
section  additional  security  may  be  required  from  the  claimant, 
if  that  already  given  is  insufficient,  etc.,  upon  proper  showing 
and  notice.  And  the  court  is  authorized  to  enforce  all  orders 
made  in  reference  thereto  by  attachment  for  contempt,  etc. 

Answer — Affidavit  of  merits — Default. — Section  19  pro- 


ATTACHMENT.  407 

vidcs  that  "  Within  three  clays  after  the  return  day  of  such 
summons — if  personally  served  ten  days  before  the  first  day  of 
the  term  to  which  it  is  returnable,  or  if  not  personall}^  served, 
then  within  the  time  prescribed  in  the  published  notice — the 
owner  or  any  person  interested  adversely  to  the  claims  men- 
tioned in  the  notice,  unless  on  cause  shown  further  time  shall 
be  allowed  by  the  court,  shall  except,  demur,  or  file  his  answer 
upon  oath  or  affirmation.  The  answer  shall  be  full  and  dis- 
tinct to  each  allegation  of  the  petition,  but  such  answer  shall 
not  have  the  effect  of  a  sworn  answer  in  chancery  as  evidence. 
At  the  time  of  filing  an  exception,  demurrer  or  answ^er,  an 
affidavit  of  the  claimant,  or  his  agent  or  attorney,  shall  be 
filed,  stating  that  the  claimant  has  a  good  defense  upon  the 
merits.  And  in  case  no  such  exception,  demurrer  or  answer, 
together  with  such  affidavit  of  merits,  be  filed  within  the  time 
above  specified,  the  petitioner  shall  be  entitled  to  a  default, 
and  the  demand  may  be  proved  and  judgment  rendered  as  in 
other  cases." 

Amendments. — (§  20.)  Amendments  are  allowed  as  in  other 
cases. 

Judgments — Order  of  sale. — Sections  21  and  22  provide 
the  manner  in  which  judgments  shall  be  rendered;  sections  23 
and  24  for  an  order  of  sale  and  the  proceedings  thereon;  and 
section  25  for  the  making  of  a  bill  of  sale  and  what  it  shall  re- 
cite, and  its  effect  as  evidence. 

Distribution. — Sections  26,  27  and  28  relate  to  the  distri- 
bution of  the  money  realized  by  the  proceeding : 

1st,  to  pay  all  costs;  2d,  to  pay  seaman's  wages  due  upon 
the  last  two  voyages,  or  if  shipped  by  the  month,  the  last  two 
months;  and  3d,  all  other  claims  filed  prior  to  the  order  of  dis- 
tribution on  which  decree  of  judgment  has  been  rendered  in 
favor  of  complainants,  together  with  w^iatever  balance  may 
be  due  seamen.  The  disposition  of  any  surplus  or  remnants  is 
provided  for. 

As  to  the  constitutionality  of  the  statute,  see  the  authorities 
noted  below.' 

Jurisdiction  of  state  and  federal  courts. — The  jurisdic- 
tion of  the  United  States  district  courts  on  the  lakes  and  nav- 

^The  Moses  Taylor,  4  Wall.  411;  Steamboat  v.  Phoebus,  11  Pet.  175; 

Hine  v.  Trevor,  4  Wall.  555;  Wil-  Jackson  v.  Steamboat,  20  How.  296; 

liamsonv.  Hogan,  46  III.  504;  Steam-  Johnson  v.  Elevator,  119  U.  S.  388. 
boat  V.   Jefferson,  10    Wheat.   428; 


408  ATTACHMENT. 

igable  waters  connecting  the  same,  is  governed  by  the  act  of 
congress  of  February  3,  1845,  and  is  not  exclusive,  but  is  con- 
current with  such  remedies  as  may  be  given  by  the  state  laws. 
A  maritime  lien  does  not  arise  on  a  contract  for  materials  and 
supplies  furnished  to  a  vessel  in  her  home  port;  and  in  respect 
to  such  contracts,  it  is  competent  for  the  state  legislatures  to 
create  such  liens  as  they  may  deem  just  and  expedient,  not 
amounting  to  a  regulation  of  commerce,  and  to  enact  reason- 
able rules  and  regulations  for  their  enforcement.  The  pro- 
ceedings by  attachment  given  by  the  statutes  of  Illinois  against 
water  crafts  to  enforce  liens  as  provided,  have  no  resemblance 
to  libels  in  the  courts  of  admiralty,  but  are  of  the  same  char- 
acter as  ordinary  suits  in  attachment.' 

Prior  liens. — An  attaching  or  judgment  creditor  can  not 
acquire  any  interest  or  right  in  the  property  seized,  against 
the  interests  of  a  bona  fide  lien  holder,  such  lien  being  prior  in 
time  to  the  levy  of  the  attachment  or  rendition  of  the  judg- 
ment. A  prior  mortgage  on  a  water  craft,  duly  recorded,  has 
precedence  of  a  lien  of  a  material-man  or  an  employe,  sub- 
sequently acquired.^ 

>  Tug  Boat  Dorr  v.  Waldron,  62  ^  Hilton  v.  Miller,  62  111.  230;  Tug 

111.  221;  Montaukv.    Walker,  4:1  III.  Boat  Dorr  v.  Waldron,  62  III.  221; 

335;    Williamson  v.  Hogan,  46  111.  Gr.   West  v.  Obemdorf,  57  111.  168; 

504:    Tlie  Belfast,  7  Wall.  624;  Or.  see    Gindele  v.   Corrigan,    129    111. 

West  V.  Obemdorf,  57  111.  168;  John-  582;  same  case,  28  111.  App.  476. 
son  V.  Elevator,  119  U.  S.  388. 


CHAPTEE  XII. 

EJECTMENT. 

The  action  of  ejectment  is  the  one  commonly  used  to  try  the 
title  to  real  property.  Originally  an  action  of  trespass,  and 
personal,  it  has  been  greatly  modified,  partly  by  judicial  con- 
trivance, and  partly,  in  later  times,  by  statutes;  and  it  is  now 
a  mixed  action,  for  the  recovery  of  land  and  damages,  the  lat- 
ter, however,  being  usually  merely  nominal.  Its  history  is 
curious,  and  well  worthy  of  study,  as  affording  perhaps  the 
most  remarkable  instance  of  the  adaptation  of  form  to  new  ex- 
igencies to  be  found  in  the  English  law.  A  lucid  exposition 
of  the  origin  of  the  action,  and  of  the  modifications  it  had 
undergone  up  to  his  time,  is  given  in  Blackstone's  Commen- 
taries.' 

In  Illinois,  ejectment  is  said  to  be,  under  the  statute  regu- 
lating it,  a  real  action,  and  not,  even  technically,  an  action  for 
a  tort;  and  it  is  held  that  the  death  of  a  sole  defendant  does 
not  abate  the  suit.*  It  is  also  held,  however,  that  where  the 
statute  is  silent,  the  practice  and  rules  of  the  common  law  are 
to  govern.^ 

When  the  action  lies,  etc. — The  general  rule  is,  that  eject- 
ment will  lie  only  for  real  property,  as  land,  or  something 
annexed  to  land,  upon  which  an  entry  might  in  fact  be  made, 
and  of  which  the  sheriff  could  deliver  actual  possession."  It  is 
therefore  not  in  general  sustainable  for  property  which  in  legal 
contemplation  is  not  tangible,  as  for  common  in  gross,  or  other 
incorporeal  hereditament,   or  for  a  water-course — though  it 

>  2  Bla.  Com.  198,  205;  see  1  Chit.  <  Adams    Eject.    16;    JacksoJi    v. 

PI.  187,  196;  2  Greenl.  Ev.,  Sec.  303,  3fay,  16  Johns.    184;  Black  v.  Hep 

337.  hunie,  2  Yeates  331;  Deux.  Craig, 

2  Guyer  v.  Wookey,  18  111.  536.  3  Green.  192, 

3  Williams  v.  Brunton,   3  Gilm. 
600. 

(409) 


410  EJECTMENT. 

will  lie  for  the  ground  over  which  the  water  pusses.'  Is'or  can 
the  action  be  sustained  for  a  movable  chattel,  such  as  a  stall.^ 

With  respect  to  the  title,  a  person  having  the  right  of  entry, 
whether  his  title  is  in  fee,  for  life,  or  for  years,  may  support  an 
action  of  ejectment,  but  the  right  of  possession  must  be  of 
some  duration,  and  exclusive,  and  therefore  ejectment  can  not 
be  supported  where  one  has  merely  a  license  to  use  land,  etc/ 

If  one  tenant  in  common  evicts  his  co-tenant,  ejectment  may 
be  sustained  by  the  latter,^  but  in  such  case  it  must  be  shown 
that  the  defendant  actually  ousted  the  plaintiff,  or  did  some 
other  act  amounting  to  a  total  denial  of  his  right.' 

After  breach  of  the  condition  of  a  mortgage  the  mortgagee 
may  maintain  ejectment.^  And  he  may  do  so  before  breach, 
as  it  is  held  by  the  English  courts,  and  in  Illinois,  and  some 
other  states  of  the  Union; '  though  the  contrary  doctrine  is 
held  by  some  courts.' 

The  mortgagee  may  maintain  ejectment  to  recover  the  mort- 
gaged property,  proceed  in  chancery  to  foreclose  the  equity  of 
redemption,  and  sue  at  law  to  recover  the  amount  of  the  debt, 
and  he  may  have  all  these  actions  at  the  same  time.' 

Where  a  person  enters  into  possession  of  premises  under  a 
purchase,  and  fails  to  comply  with  the  terms  of  the  contract  of 

»  Chancellor  v.  Thomas,  Yelv.  143;  v.    Fischer,   30  111.    234;  Pollock  v. 

Adams  Eject.  18,  20.  Miason,  41  111.  516;  Speer  v.  Had- 

^  See  1  Chit.  PL  187,  et  seq.  duck,  31  111.  439;  Oldham  v.  Pfleger, 

3  1  Chit.  PL  189;  Goodtitle  v.  Wil-  84  111.  102;  Fisher  v.  Mllmine,  94  IlL 

son,  11  East   345;  King  v.  Mellor,  2  328;    Finlon  v.  Clark,   118    111.  32; 

East  190.  Taylor  v.  Adams,  115  111.  570;  Esker 

■»  Johnson   v.   Sicain,   Bush.    835;  v.  Heffervian,    159  111.  38;  see  3Ic- 

Lessee  v.  Sayi^e,  2  Ohio  110;  Valen-  Gianis  v.  Fernandes,  126  111.  228. 

tine  V.    Northrop,  12    Wend.    494;  '  Carroll  v.  Ballance,  26  III.  9,  and 

Shaver  v.  McGraw,  12  Wend.   562;  cases  there    cited;    see  Kilgour  v. 

Barnitz  v.  Casey,  7  Cranch  456;  see  Gockley,    83    111.    109;     Barrett    v. 

Lundy  v.  Lundy,  131  IlL  138.  Hinckley,  124  111.  32. 

sEev.  Stat.  (1893)  618;  Rev.   Stat.  »  Jackson  v.  Myers,  11  Wend.  533; 

(1895)  666;    Starr  &  Curtis  987;    1  Jackson  v.  Bronson,  19  Jolins.  325; 

Chit.  PL  191;  Lundy  v.  Lundy,  131  Wilson  v.  Troup,  2  Cow.  145. 

111.  138.  8  Delehayy.  Clement,  3  Scam.  201; 

«  Lessee  t.   McGuire,  2  Ohio  223;  Van  Sant  v.  Allmon,  23  111.  30;  Car- 
Carroll  V.  Ballance,  26  111.  9;  Dele-  roll  v.  Ballance,  26  III.  9;  Holstonv. 
hay  V.  Clement,  3  Scam.  201;   Van  iVeedZes,  115  IlL  461. 
Sant  V.  Allmon,  23  111.  30;  Rolland 


EJECTMENT  411 

purchase,  the  vendor  may  treat  the  contract  as  rescinded  and 
regain  tlie  possession  by  this  action,'  but  not  until  after  notice 
to  quit,  or  a  demand  of  possession,^  unless  there  has  been 
some  act  or  omission  on  the  part  of  the  purchaser  which 
amounts  to  a  repudiation  of  the  contract/ 

Title  necessary  to  sustain. — An  equitable  title  will  not 
sustain  ejectment,^  nor  will  it  avail  as  a  defense  against  the 
legal  title."  In  ejectment  legal  title  only  can  be  tried,  and  the 
plaintiff  can  not  recover  unless  he  shows  a  legal  right  to  the 
property  as   contradistinguished    from  an   equitable    right/ 

While  as  a  general  rule,  the  legal  title  must  prevail  in  ac- 
tions at  law,  ejectment  can  not  be  maintained  against  one  in 
the  lawful  and  rightful  possession  of  land.'  The  action  of 
ejectment  proceeds  for  the  possession  of  the  premises,  claim- 
ing that  they  have  been  unlawfully  entered  upon  and  unjustly 
withheld.  When  the  defendant's  possession  is  rightful,  and 
the  plaintiff  is  not  wrongfully  kept  out  of  possession,  the  action 
can  not  be  maintained.*  If  ejectment  be  brought  by  one  claim- 
ing under  a  mortgagor  of  the  premises  against  the  mortgagee 
in  possession,  or  one  holding  under  him  as  tenant,  the  mortgage 
will  constitute  a  complete  defense  to  the  action,  for  the  reason 
that  ejectment  can  not  be  maintained  against  one  lawfully  in 
possession,^ 

In  this  action,  the  plaintiff  must  show  himself  entitled  to 
the  possession  on  the  day  laid  in  the  declaration;  a  deed  made 

>  Dean  v.    Comstock,   32   111.  173;  446;    Barrett  v.    Hinckley,    124  111. 

Kibhen  v.  Neicell,  41  111.  461;  see  R.  32;  Sontag  v.  Bigelow,  142  111.  143. 
R.  Co.  V.  Hay,  119  111.  493.  *  Chiniquy  v.  Cath.  Bisli.,  41  III. 

^  Prentiss  V.   Wilson,    14    111.    91;  148;   Wales  v .  Bouge,  81111.  iG8:  see 

Higgins  v.  Highjield,  13   East    407;  Johnson    v.    Watson,    87    111.    535; 

see  Stow  v.  Russell,  36  111.  18.  Kirkpatrick  v.  Clark,  132  111.  342. 

3  Prenfiss  V.  W^tZsoji,  14  111.91;   see  ^Walton    v.    Follansbee,    131111, 

Wood  V.  Morton,  11  111.  547.  147;  Barrett  v.    Hinckley,    124    111. 

*  Finlon    v.    Clark,    118  111.    32;  33;  see  Sands  v.    Wacaser,  149  111. 

Fleming  V.  Carter,  70  111.  286;  Joy  530;  Church  v.  Church,  138  111.  608. 
V.  Berdell,  25  111.  537;  Franklin  v.  "^  Sands  x.  Wacaser,  149111.  530. 

Palmer,  50    111.  202;  Roundtree    v,  »  gands  v.    Wacaser,  149  111.  530. 

Little,  54   111.  323;  Aholz  v.  Zellar,  ^Fountain  v.  Bookstover,  141   III. 

88  111.  24:  Peojile  v.    Force,  100  111.  461. 
549;    DeWitt  v,    Bradbury,  94    111. 


4 1  2  EJECTMENT. 

after  that  time  can  not  aid  him/  And  he  must  rely  on  the 
strength  of  his  own  title,  and  not  on  the  weakness  of  that  of 
the  defendant.^  Proof  of  prior  possession  under  claim  of 
ownership  is  prima  facie  evidence  of  ownership  and  seizin, 
and  is  sufficient  to  authorize  a  recovery,  unless  the  defendant 
shall  show  a  better  title.' 

A  legal  subsisting  title  outstanding  in  a  third  person,  will 
defeat  a  recovery;  *  but  a  mortgage,  even  after  condition  broken, 
does  not  constitute  an  absolute  outstanding  title,  of  which  a 
stranger  can  take  advantage/ 

A  mere  trespasser  who  takes  forcible  possession  of  land 
without  title  will  not  be  allowed  to  set  up  an  outstanding 
title/ 

It  is  held  that,  under  the  statute  of  Illinois,  a  conveyance 
made  b}^  the  plaintiff  during  the  pendency  of  the  suit  does  not 
aifect  his  right  of  recovery;  and  that  in  such  case  the  benefit 
of  the  recovery  inures  to  his  grantee/  And  a  person  entering 
under  the  defendant,  pending  the  suit,  takes  the  land  subject 
to  whatever  judgment  may  be  rendered;  but  where  a  landlord 
has  resumed  possession,  pending  a  suit  in  ejectment  against 
his  tenant,  and  the  landlord  has  received  no  notice  of  the  suit, 

'TFoodv.  iJIorf on,  11  111.  547;  PiY-  Benefield    v.    Albert,  \Z2    111.    665; 

kinv.  Yaw,  13   111.  251;  Kilgour  v.  Andersonv.  McCormick,  129111.308; 

Gocklaj,  83  111.  109;  see  Joy  v.  Ber-  Harland  v.  Eastman,  119  111.  22. 

dell,  25  111.  537;  Mills  v.  Graves,  44  *  Masterson  v.    Cheek,  23  111.    72; 

111.  50;  Sands  v.  Kngay,  150  111.  109.  Hidickv.  Sclwvill,  4Gilm.  159;  Ru- 

^BoijerY.  Thornherg,  115  111.  540;  pert  v.  Mark,  15  111.  540;  Stuart  v. 

3Iarsliallv.  Barr,  35  111.  106;  Stuart  Button,  39  111.    91;  Oetgen  v.  Ross, 

V.  Button,  39  111.  91;  Hague  v.  Poi^-  54  111.  79;  Cobb  v.  Lavalle,  89  111.  331; 

ter,  45   111.  318;  Cobb  v.  Lavalle,   89  Clark  v.  Bay,  93  111.  480;  Kirklandv. 

111.  331;   Vallette  v.  Bennett,  69  111.  Cox,  94  111.400;  Whitford  \ .  Brexel, 

632;  67i(??ip/v.  Osfer/mgre,  94111.  115;  118  111.600;  Walton  v.   Follansbee, 

Mester  v.  Houser,  94  111.  433;  Kirby  13]  111.  147. 

V.    Ry.  Co.,  109   111.  412;  Sidu-ell  y.  ^ Hall  v .  Lanee,  25  111.  277;  Fisher 

Schumacher,  99  111.    426;    Agnew  v.  v.  Milmine,  94  111.  328;  Holbrook  v. 

Perry,    120    III.    656;    Whitford  v.  Bebo,99 111312;  Barrett  v.  Hinckley, 

Brexel,  118  111.  602;  Village  v.  Good-  124111.  32. 

u-iin,     128     111.    57;      see    Pai-k   v.  « ^Jirferson  v.  (?ra?/,  134  111.  550. 
Gavin,  139  111.    280;  Kirkpatrick  v.  ■»  Mills  v.  Graves,  44  111.  50;  John- 
Clark,  132   111.  345;  Walton  v.   Fol-  son  v.  Shinkle,  50  111.  137;  Holbrook 
lansbee.  131  111.  156.  v.  Debo,  99  111.  372. 

^Burger   v.    Hobbs,   67    lU.   592; 


EJECTMENT.  413 

and  is  chargeable  with  no  fault  or  laolies^  he  will  not  be  evicted 
by  a  writ  of  possession  issued  on  a  judgment  against  the 
tenant,  but  the  writ  Avill,  on  motion,  be  stayed,  and  the  land- 
lord let  in  to  defend  the  existing  suit  on  the  merits.' 

The  statute  of  Illinois  in  force  July  1,  1872,  provides  that 
the  action  of  ejectment  may  be  brought  in  the  cases  thereto- 
fore accustomed,  subject  to  the  provisions  of  the  act;  and  that 
it  may  also  be  brought  in  the  same  cases  in  which  a  writ  of 
right  may  be  brought  by  law,  to  recover  lands,  tenements  or 
hereditaments,  and  by  any  person  claiming  an  estate  therein, 
in  fee,  for  life  or  for  years,  either  as  heir,  devisee  or  purchaser." 

By  landlord  against  tenant. — In  regard  to  the  action  of 
ejectment  by  a  landlord  against  his  tenant  for  non-payment 
of  rent,  the  statute  of  Illinois  concerning  landlord  and  tenant 
provides  as  follows :  "  In  all  cases  between  landlord  and 
tenant,  where  one-half  year's  rent  shall  be  in  arrear  and  un- 
paid, and  the  landlord  or  lessor  to  whom  such  rent  is  due  has 
right  by  law  to  re-enter  for  non-payment  thereof,  such  land- 
lord or  lessor  may,  without  any  formal  demand  or  re-entry, 
commence  an  action  of  ejectment  for  the  recovery  of  the  de- 
mised premises.  And  in  case  judgment  be  given  for  the 
plaintiff  in  such  action  of  ejectment,  and  the  writ  of  posses- 
sion be  executed  thereon  before  the  rent  in  arrear  and  costs  of 
suit  be  paid,  then  the  lease  of  such  lands  shall  cease  and  be 
determined,  unless  such  lessee  shall,  by  writ  of  error,  reverse 
the  said  judgment,  or  shall,  by  bill  filed  in  chancery  within 
six  months  after  the  rendition  of  such  judgment,  obtain  relief 
from  the  same  :  Provided,  that  any  such  tenant  may,  at  any 
time  before  final  judgment  on  said  ejectment,  pay  or  tender 
to  the  landlord  or  lessor  of  the  premises  the  amount  of  the 
rent  in  arrear,  and  costs  of  suit,  and  the  proceedings  on  such 
ejectment  shall  thereupon  be  discontinued."^ 

Who  may  maintain  the  action. — The  statute  of  Illinois 

^  Oetgen  V.  Ross,  54  111.  79;  Lowe  ^2    Starr  &    Curtis,    1492;    Rev. 

V.  Emerson,  48  III.  160;  see  Hanson  Stat.  (1893)    920;    Rev.  Stat.    (1895) 

V.  Armstrong,  23  111.  442;  Williams  976:  Ebeiiienv.  Abel,  lOBradw.  626: 

V.  Brunton,  S  Gilm.  QOO.  Whitford   v.  Drexel,    118  111.    600; 

2  1  StaiT  &  Curtis,  980;  Rev.  Stat.  Harland  v.  Eastman,  119  111.  22. 
(1893)  616;  Rev.  Stat.  (1895)  664. 


414  EJECTMENT. 

concerning  ejectment,  provides  that  no  person  shall  recover  in 
this  action  unless  he  has,  at  the  time  of  the  commencement  of 
the  suit,  a  valid  subsisting  interest  in  the  premises  claimed, 
and  a  right  to  recover  the  same,  or  to  recover  the  possession 
thereof,  or  of  some  share,  interest  or  portion  thereof,  to  be 
proved  and  established  at  the  trial.' 

This  statute  further  provides  that  any  two  or  more  per- 
sons claiming  the  same  premises  as  joint  tenants,  tenants  in 
common  or  co-parceners,  may  join  in  a  suit  for  the  recovery 
thereof,  or  any  one  may  sue  alone  for  his  share." 

A  party  can  not  maintain  ejectment  based  upon  a  parol 
partition,  as  the  plaintiff  must  recover  on  a  legal  title,  and 
can  not  upon  an  equitable  title.* 

The  corporate  authorities  of  a  city  may  maintain  ejectment 
against  an  intruder  upon  the  public  streets.' 

Against  whom  to  be  brought,  etc. — The  statute  of  Illinois, 
above  mentioned,  further  provides,  that  if  the  premises  for 
which  the  action  is  brought  are  actually  occupied  by  any  per- 
son, such  actual  occupant  shall  be  named  defendant  in  the 
suit,  and  all  other  persons  claiming  title  or  interest  to  or  in 
the  same,  may  also  be  joined  as  defendants.  If  the  premises 
are  not  occupied,  the  action  is  to  be  brought  against  some  per- 
son exercising  acts  of  ownership  on  the  premises  claimed,  or 
claiming  title  thereto,  or  some  interest  therein,  at  the  com- 
mencement of  the  suit.^ 

The  statute  also  provides  that  "if  the  action  is  against 
several,  and  the  plaintiff  is  entitled  to  recover,  he  shall  recover 
ao-ainst  all  who  are  in  joint  possession  or  claim  the  title, 
w4iether  they  shall  have  pleaded  separately  or  jointly."  And 
further,  that  "  when  the  action  is  against  several  defendants, 
if  it  appear  on  the  trial  that  any  of  them  occupy  distinct 
parcels  in  severalty  or  jointly,  the  plaintiff  shall  elect,  at  the 

11  Starr  &  Curtis  980;  Rev.  Stat.  1  Chit.  PI.  62-65;  Cone  v.   Coleman, 

(1893)  616;     Rev.     Stat.    (1895)  664;  108  111.  591. 

Mills  V.    Graves,    44    111.    50;     see  ^  Sontag  v.  Bigeloiii,  142111.  lid. 

Wood     V.     Morton,     11     111.     547;  *  Chicago  v.  Wright,  69  111.  818. 

Pitkin  V.  Yaw,  IS  111.    251;  Joy  v.  M  Starr  &  Curtis  981,982;  Rev. 

Berdell,  25  111.  537.  Stat.   (1893)    617;    Rev.    Stat.    (1895) 

2  1  Starr  &  Curtis  981;  Rev.    Stat.  665;   Dickerson  v.   Hendrix,  88  111. 

(1893)617;  Rev.  Stat.  (1895)  665;  see  66;  Park  v.  Gavin,  139  111.  280. 


EJECTMENT.  415 

trial,  against  which  he  will  proceed;  which  election  shall  be 
made  before  the  testimony  in  the  cause  shall  be  deemed  to  be 
closed;  and  the  suit  shall  be  dismissed  as  to  the  defendants  not 
so  proceeded  against/ 

It  is  not  necessary,  in  ejectment,  to  make  any  other  person 
than  the  occupant  a  defendant.  A  recovery  against  him  binds 
all  persons  in  privity.^  But  a  person  in  possession  merely  as  a 
servant  or  employe  of  the  person  claiming  an  adverse  title,  is 
not  an  occupant  within  the  meaning  of  the  statute/ 

Suit  against  tenant  by  other  than  landlord. — The  same 
statute,  sections  17  and  18,  further  provides  that  every  tenant 
who  shall  at  any  time  be  sued  in  ejectment,  by  any  person 
other  than  his  landlord,  shall  forthwith  give  notice  thereof  to 
his  landlord,  or  to  his  agent  or  attorney,  under  the  penalty  of  for- 
feiting two  years'  rent  of  the  premises  in  question,  or  the  value 
thereof,  to  be  recovered  by  such  landlord  by  action  of  debt,  in 
f.ny  court  having  cognizance  thereof.  The  landlord  whose 
tenant  is  sued  in  ejectment,  may,  upon  his  own  motion  or  that 
of  the  plaintiff,  be  made  defendant  in  such  action,  upon  such 
terms  as  may  be  ordered  by  the  court.* 

The  landlord  may  appear  and  defend  in  the  name  of  the 
tenant,  if  he  will  indemnify  him  against  costs;  and  the  name 
of  the  landlord  may  be  entered  on  the  record  as  defendant 
instead  of  the  tenant;  ^  but  it  has  been  held  that  the  land- 
lord could  not  be  allowed  to  substitute  his  own  name  as  de- 
fendant, in  place  of  that  of  the  tenant,  without  the  plaintiff's 
consent.® 

A  judgment  in  ejectment  against  a  tenant  in  possession  is 
conclusive  upon  the  landlord,  if  the  latter  interposed  in  aid  of 
tKe  tenant  in  the  defense,  or  if  the  landlord  had  notice  of  the 

'  1  Starr  &  Curtis  987;  Rev.  Stat.  Thomsen  v.  McCormick,  136  111.  135. 

(1893)  618;  Rev.  Stat.  (1895)  666.  ^  Thomjyson  v.  Schuyler,  2  Gilm. 

^  Hanson  V.  Armstrong,  22  111.442.  271;   Williams  v.  Brunton,  3  Gilm. 

^  Chiniquy  v.  BisJwp,  41  111.  148;  600;  see  Starr  &  Curtis  984;   Rev. 

Hazrkins  v.  Reichert,   28  Cal.  535.  Stat.  (1893),  618;    Rev.  Stat.  (1895), 

But  see  1  Chit.  PI.  191.  666. 

n  Starr  &  Curtis  984;   Rev.  Stat.  ^  Merritt  v.  Thompson,  13  111.  716; 

(1893),    618;    Rev.    Stat.  (1895),  666;  Jackson  v.  Stager,  1  Cowan  134. 
Stribling  v.  Prettyman,  57  111.    371; 


416  EJECTMENT. 

pendency  of  the  suit,  and  full  opportunity  of  making  a  defense 
thereto.' 

COMMENCEMENT  OF  THE  ACTION. 

In  Illinois,  the  action  of  ejectment  is  commenced  by  the  issu- 
ino-  of  a  summons,  which  is  of  like  form  with,  and  tested, 
served  and  returned  in  the  same  manner  as  summonses  in 
other  actions  at  law/ 

The  declaration.— The  time  for  filing  the  declaration  in 
ejectment,  under  the  present  statute  of  Illinois,  is  the  same  as 
in  other  actions  at  law,  that  is  to  say,  ten  days  before  the  term 
to  which  the  summons  is  made  returnable,  etc.* 

The  statute  further  provides,  in  regard  to  the  declaration, 
as  follows :  "  It  shall  be  sufficient  for  the  plaintiff  to  aver  in 
his  declaration,  that  (on  some  day  therein  to  be  specified,  and 
which  shall  be  after  his  title  accrued)  he  was  possessed  of  the 
premises  in  question  (describing  them  as  hereinafter  provided^ 
and  being  so  possessed  thereof,  that  the  defendant  afterwards 
(on  some  day  to  be  stated)  entered  into  such  premises,  and 
that  he  unlawfully  withholds  from  the  plaintiff  the  posses- 
sion thereof,  to  his  damage  any  nominal  sum  the  plaintiff  shall 
think  proper  to  state.* 

"  The  premises  so  claimed  shall  be  described  in  such  declara- 
tion with  convenient  certainty,  so  that,  from  such  description, 
possession  of  the  premises  claimed  may  be  delivered.  If  such 
plaintiff  claims  any  undivided  share  or  interest  in  any  prem- 
ises, he  shall  state  the  same  particularly  in  such  declaration. 
But  the  plaintiff,  in  any  case,  may  recover  such  part,  share  or 
interest  in  the  premises  as  he  shall  appear  on  the  trial  to  be 
entitled  to.* 

"  In  every  case,  the  plaintiff  shall  state  whether  he  claims  in 
fee  or  whether  he  claims  for  his  own  life,  or  the  life  of  an- 
other, or  for  a  term  of  years,  specifying  such  life  or  the  dura- 
tion  of  such   term.      The   declaration   may   contain   several 

•>  Thomsen  v.  McCormicTc,  136  111.  *See  Park  v.  Gavin,  139  111.  280. 

135;  see  Park  v.  Gavin,  139  111.280.  ^See  Wat.   Ad.  Eject.,   233;    Al- 

2 Rev.  Stat.  (1893),  617;  Rev.  Stat.  mond  v.  Bonnell,  76  111.  536;  Com. 

(1895),  665;  1  Starr  &  Curtis  982.  v.  Coleman,  108  111.  591. 

3  lb. 


EJECTMENT.  417 

counts,  and  several  parties  may  be  named  as  plaintiffs,  jointl}^ 
in  one  count  and  separately  in  others."  ' 

The  demise  of  the  plaintiff  should  not  be  alleged  as  of  a 
date  prior  to  his  having  acquired  the  title.^ 

As  the  action  of  ejectment  is  local,  it  must  appear  from  the 
declaration  that  the  land  is  situate  in  the  county  where  the 
suit  is  brought,  or  there  will  be  a  want  of  jurisdiction  in  the 
court.^ 

No.  229.    Declaration  in  ejectment. 

In  the Circuit  Court. 

Term,  18—. 

State  of  Illinois,  ) 

County  of .      f  set.     A.  B.,  plaintiff,  by  E.  F.,  his  attorney,  complains 

of  C.  D.,  defendant,  of  a  plea  of  ejectment:    For  that  the  plaintiff,  on  the 

day  of ,  in  the  year  18  — ,  was  possessed  of  a  certain  parcel  of 

land,  with  the  appurtenances,  lying  in  the  county  aforesaid,  to  wit,  {here 
describe  the  land;)  which  said  tenements  the  plaintiff  claims  in  fee:  And 
the  plaintiff  being  so  thereof  possessed,  the  defendant  afterwards,  to  wit,  on 
etc.,  entered  into  the  said  tenements,  and  now  unlawfully  withholds  from 

the  plaintiff  the  possession  thereof;  to  the  damage  of  the  plaintiff  of 

dollars,  and  therefore  he  brings  his  suit,  etc. 

If  the  declaration  or  count  is  for  an  undivided  interest,  say, 
"  was  possessed  of  the  one  undivided  half  part  of  a  certain 
parcel  of  land,"  etc.  And  if  a  less  estate  than  the  fee  is 
claimed,  sa}'  "  which  said  tenements  the  plaintiff  claims  for  the 
term  of   his  life,"  or  "  for  the  term  of   the  life  of  one  J.  K., 

Avho  is  still  living,"  or  "  for  the  term  of years  from  the 

day  of ,"  etc. 

No.  230.    Declaration  by  several  persons,  naming  them  as  plaintiffs  Jointly 
in  one  count  and  separately  in  others. 

{Title  of  court,  etc.)  A.  B.,  G.  H.  and  J.  K.,  plaintiffs,  by  E.  F.  their  at- 
torney, complain  of  C.  D.  defendant,  of  a  plea  of  ejectment:  For  that  the 
plaintiffs,  on,  etc. ,  were  possessed  of  a  certain  parcel  of  land,  with  the  ap- 

'  1  Starr  &  Curtis  983;  Rev.  Stat.  son,  47  111.  25;    Hardin  v.  Kirk,  49 

(1893),  617;    Rev.    Stat.   (1895),   665;  111.  153. 

Rawlins  V.  Bailey,  15  III.  nS;    Ru-  ^  Schoonmaker    v.    Doolittle,   118 

pert  V.  Mark,  15  111.  540;    Ballance  111.  605. 

V.  Raickin,  12  m.  420;    Murjihy    v.  ^  Minkhart    v.    Hankler,    19  111. 

Orr,  32  111.  489;  Deininger  v,  Mc-  47;  Stark  v.  Ratcliff,  111  111.  81. 
Connell,  41  111.  228;  Clark  v.  Thomp- 
27 


418  EJECTMENT. 

purtenances,  lying  in  the  county  aforesaid,  to  wit,  (here  describe  the  land;) 
which  said  tenements  tlie  plaintiffs  claim  in  fee:  And  the  plaintiffs  being 
so  thereof  possessed,  the  defendant  afterwards,  to  wit,  on,  etc.,  entered 
into  the  said  tenements,  and  now  unlawfully  withholds  from  the  plaintiffs 
the  possession  of  the  same. 

{Second  count.)  And  also  for  that  the  said  A.  B.,  on,  etc.,  was  possessed 
of  the  one  undivided  third  x>art  of  a  certain  other  parcel  of  land,  with  the 
appurtenances,  lying  in  the  county  aforesaid,  to  wit,  (heie  describe  the  land); 
which  last  mentioned  tenements  the  said  A.  B.  claims  in  fee:  And  he  be- 
ing so  thereof  possessed,  the  defendant  afterwards,  to  wit,  on,  etc.,  entered 
into  the  last  mentioned  tenements,  and  now  unlawfully  withholds  from  the 
said  A.  B.  the  possession  of  the  same. 

{Third  count.)  And  also  for  that  the  said  G.  H.,  on,  etc.,  was  possessed 
(and  so  on  as  in  the  second  count,  substituting  O.  H.  for  A.  B.  through- 
out.) 

{Fourth  count.)  And  also  for  that  the  said  J.  K.,  on,  etc.,  was  possessed 
{and so  on  as  intlie  second  count,  substituting  J.  K.  for  A.  B.  throughout.) 

{Conclusion.)    Wherefore  the  plaintiffs  say  that  they  are  injured,  and 

have  sustained  damage  to  the  amount  of  dollars,  and  therefore  they 

bring  suit,  etc. 

See  the  section  of  the  statute  above  quoted,  allowing  sev- 
eral counts,  by  different  plaintiffs.  Before  the  fiction  of  a 
nominal  plaintiff  was  abolished,  the  declaration  might  include 
several  counts,  on  the  demises  of  different  persons.' 

The  27th  section  of  the  Illinois  ejectment  act  provides  that 
"  it  shall  not  be"  an  objection  to  a  recover}^  in  any  action  of 
ejectment,  that  any  one  of  several  plaintiffs  do  not  prove  any 
interest  in  the  premises  claimed,  but  those  entitled  shall  have 
judgment,  according  to  their  rights,  for  the  whole  or  such 
part  or  portion  as  he  or  they  might  have  recovered  if  he  or 
they  had  sued  in  his  or  their  name  or  names  only."  * 

DEFENSES    TO    THE    ACTION. 

The  statute  of  Illinois,  sections  19  and  21,  provides  as  fol- 
lows: "The  defendant  may  demur  to  the  declaration,  as  in 
personal  actions,  or  he  shall  plead  the  general  issue,  which  shall 
be  that  the  defendant  is  not  guilty  of  unlawfully  withholding 
the  premises  claimed  by  the  plaintiff,  as  alleged  in  the  decla- 
ration, and  the  filing  of  such  plea  or  demurrer  shall  be  deemed 

'1  Chit.  PI.  (11  Am.  Ed.),  187.  (1893)  618;  Rev.  Stat.  (1895),  666;  see 

2  1  Starr  &  Curtis  987;  Rev.   Stat.       Walton  v.  Follansbee,  131  111.  147. 


EJECTMENT.  419 

an  appearance  in  the  cause,  and  upon  such  plea  the  defendant 
may  give  in  evidence  any  matter  that  may  tend  to  defeat  the 
plaintiff's  action,  except  as  hereinafter  provided.  The  plea  of 
not  guilty  shall  not  put  in  issue  the  possession  of  the  premises 
by  the  defendant,  or  that  he  claims  title  or  interest  in  the  prem- 
ises." ^  The  plea  for  which  the  statute  provides  only  purports 
to  deny  the  unlawful  withholding  of  the  premises. 

The  action  of  ejectment  proceeds  upon  the  theory  of  an 
unlawful  entry  and  unjust  detention." 

In  the  absence  of  any  statute  on  the  subject  the  real  plaintiff 
must  prove,  on  the  general  issue,  first,  that  he  had  the  legal 
estate  in  the  premises  at  the  time  of  the  demise  laid  in  the  dec- 
laration; second,  that  he  also  had  the  right  of  entry;  and  third, 
that  the  defendant,  or  some  one  claiming  under  him,  was  in 
possessioyi  of  the  premises  at  the  time  when  the  suit  was  com- 
menced.^ 

A  judgment  in  an  action  of  forcible  entry  and  detainer  can 
not  be  pleaded  as  a  bar  to  an  action  of  ejectment,  for  the  reason 
that  the  questions  involved  in  the  two  proceedings  are  differ- 
ent. The  question  of  title  can  not  be  inquired  into  in  forcible 
entry  and  detainer,  and  if  it  could,  a  judgment  therein  would 
be  no  bar,  without  proof  that  the  question  of  title  was  raised 
and  decided.* 

No.  231.    Plea — not  guilty. 

In  the Ck)urt. 

Term,  18—. 

CD.) 

ats.   >  Ejectment. 

A.  B.  )  And  the  defendant,  by  G.  H.,  his  attorney,  comes  and  defends  the 
wrong  and  injury,  when,  etc.,  and  says  that  he  is  not  guilty  of  unlawfully 
withholding  the  tenements  in  the  said  declaration  mentioned,  or  any  part 
thereof,  in  manner  and  form  as  the  plaintiff  has  above  thereof  complained 
against  him:  And  of  tliis  the  defendant  puts  himself  upon  the  country,  etc. 

•  Sheldon  v.  Van  \leck,  106  111.  45;  Sands  v,   Kagey,  150  111.  109;  Sands 

Wielandv.  Kobick,  110  111.  16:  Roose-  v.  Wacaser,  149  111,  530. 

velt  V.  Hungate,  110  111.  595;  Stub-  ^2  Greenl.  Ev.,  Sec.  304;  Tilhng. 

blefield  v.  Borders,  92  111.  279;  JR.  R.  Ad.  Eject.,  247. 

Co.  V.  Saunfer,  92  III.  377;  R.  R.  Co.  *  Riverside  Co.  v.  Toumshend,  120 

V.  Hardt,  138  111.  120.  111.  9. 
^  R.  R.  Co.  V.  Karnes,  101  111.  402; 


420  EJECTMENT. 

The  plea  of  not  guilty  admits  the  possession  of  the  entire 
premises  claimed  in  the  declaration.' 

The  statute  of  Illinois  (section  22)  further  provides  that 
"it  shall  not  be  necessar}''  for  the  plaintiff  to  prove  that 
the  defendant  was  in  possession  of  the  premises,  or  claims 
title  or  interest  therein,  at  the  time  of  bringing  the  suit,  or 
that  the  plaintiff  demanded  the  possession  of  the  premises, 
unless  the  defendant  shall  deny  that  he  was  in  such  posses- 
sion, or  claims  title  or  interest  therein,  or  that  demand  of  pos- 
session was  made,  by  special  plea,  verified  by  affidavit."'' 

Section  22  of  the  ejectment  act  is  intended  to  apply  to  the 
different  cases  as  they  may  arise.  If  the  suit  is  brought  to 
recover  possession  under  the  first  clause,  the  defendant  may 
deny  possession,  and  thereby  defeat  the  action,  unless  posses- 
sion is  shown.  If  persons  are  made  parties  defendant  who 
are  not  in  possession,  upon  the  basis  that  they  are  claiming 
title  or  interest  in  the  premises,  they  may  put  in  issue  that 
fact,  the  same  as  if  the  suit  was  brought  to  recover  vacant 
land  under  section  7  of  the  statute.  In  the  latter  case,  a  plea 
denying  possession  presents  an  immaterial  issue.* 

In  ejectment,  to  recover  the  possession  of  a  lot,  the  defend- 
ant may  defeat  a  recovery  by  showing  that  the  plaintiff's  deed 
was  made  to  him  for  the  purpose  of  hindering,  delaying  and 
defrauding  the  creditors  of  the  defendant,  or  for  any  other 
illegal  purpose.* 

Claim  for  mesne  profits. — On  this  subject,  the  statute  of 
Illinois  provides  as  follows  :  "  Instead  of  the  action  of  tres- 
pass for  mesne  profits,  the  plaintiff  seeking  to  recover  such 
damages,  shall,  within  one  year  after  the  entering  of  the  judg- 
ment, make  and  file  a  suggestion  of  such  claim,  which  shall  be 
entered,  with  the  proceedings  thereon,  upon  the  record  of  such 
judgment,  or  be  attached  thereto,  as  a  continuation  of  the 
same. 

'  Ry.  Co.  V.  Hardt,  138  111.  120.  BrandisJiv.  Grant,  119  111.  606;  see 

2 1  Starr  &  Curtis,  986;  Rev.  Stat.       Park  v.  Gavin,  139  111.  280;  Ry.  Co. 


(1893),  618;  Rev.  Stat.  (1895),  666 
JShirphy  v.  Williamson,  85  111.  149 
Dickerson  v.  Hendryx,  88  111.  66 
Wieland   v.    Kohick,    110    111.    16 


V.  Hardt,  138  111.  120;  Timmons  v. 
Kidwell,  138  111.  13. 

2  Parkv.  Gavin,  139  111.  280. 

*KirkpatHck  v.  Clark,  132111.  342. 


EJECTMENT.  421 

"  Such  sugjTestion  shall  be  substantially  in  the  same  form  as 
is  now  in  use  for  a  declaration  in  an  action  of  assumpsit  for 
use  and  occupation,  and  the  same  rules  of  pleadino:  thereto 
shall  be  observed  as  upon  declarations  in  personal  actions."  ^ 

No.  232.     Suggestion  of  claim  for  mesne  profits. 

In  the Court. 

Term,  18~, 

A.  B.  )     . 

t7,§.     I  Ejectvient.     Claim  for  mesne  profits  . 

C.  D.  )      And  now  on  this day  of,  etc.,  comes  the  plaintiff ,  by  E.    F., 

his  attorney:  and.  according  to  the  form  of  the  statute  in  sucli  case  made 
and  provided,  suggests  to  the  court  here,  that  the  defendant,  on,  etc.,  in 

etc.,  was  indebted  to  the  plaintiff  in  the  sum  of dollars,  for  the  use 

and  occupation  of  the  tenements  above  in  the  said  declaration  and  judg- 
ment mentioned,  by  the  defendant  held,  used  and  occupied,  at  his  request, 
for  a  long  space  of  time  before  then  elapsed;  and  being  so  indebted,  the  de- 
fendant, in  consideration  thereof,  on  the  day  last  aforesaid  there  promised 
the  plaintiff  to  pay  him  the  said  sum  of  money,  on  request :  Yet  the  de- 
fendant, though  requested,  has  not  paid  to  the  plaintiff  the  said  sum  of 
money,  or  any  part  thereof,  but  refuses  so  to  do;  to  the  damage  of  the 
plaintiff  of dollars,  etc. 

Upon  the  filing  of  such  suggestion,  the  defendant  is  to  be 
summoned  in  the  same  manner  as  in  an  original  action.'^ 

As  between  the  successful  plaintiff  in  an  action  of  eject- 
ment and  the  evicted  defendant  or  his  tenant,  growing  crops 
are  a  part  of  the  realty,  and  belong  to  the  plaintiff,  and  the 
fact  that  he  may  have  his  action  for  mesne  profits  will  not 
impair  his  right  of  ownership  therein.' 

Defenses  to  the  claim  for  mesne  profits,  etc. — The  statute 
above  mentioned  further  provides  as  follows :  "  The  defendant 
may  plead  the  general  issue  of  non  assumpsit,  and,  under  such 
plea,  may  give  notice  of,  or  may  plead  specially,  any  matter  in 
bar  of  such  claim,  except  such  as  were  or  might  have  been 
controverted  in  such  action  of  ejectment;  but  he  may  plead  or 
give  notice  of  a  recovery  by  such  defendant,  or  any  other  per- 
son, of  the  same  premises,  or  of  part  thereof,  subsequent  to 

'  1  Starr  &  Curtis  992;  Rev.  Stat.  (1893)    620;    Rev.    Stat.    (1895)    668; 

(1893)  620;    Rev.    Stat.    (1895)    668;  Tucker  v.  Hamilton,  108  III.  iGA. 

Ringhouse  v.  Keener,  63  111.  230.  ^  McGinnis  v.  Fernandes,   135  111. 

«  1  Starr  &  Curtis  992;  Rev.  Stat.  69. 


422  EJECTMENT. 

the  verdict  in  such  action  of  ejectment,  in  bar  or  in  mitigation 
of  the  damages  claimed  by  the  plaintiff. 

"  If  any  issue  of  fact  be  joined  on  such  suggestion,  it  shall 
be  tried  as  in  other  cases;  and  if  such  issue  be  found  for  the 
plaintiff,  the  same  jury  shall  assess  his  damages  to  the  amount 
of  the  mesne  profits  received  by  the  defendant  since  he  en- 
tered into  possession  of  the  premises,  subject  to  the  restrictions 
hereinafter  contained. 

"  On  the  trial  of  such  issue,  the  plaintiff  shall  bo  required  to 
establish,  and  the  defendant  may  controvert,  the  time  when 
such  defendant  entered  into  the  possession  of  the  premises, 
the  time  during  which  he  enjoyed  the  mesne  profits  thereof, 
and  the  value  of  such  profits;  and  the  record  of  the  recovery 
in  the  action  of  ejectment  shall  not  be  evidence  of  such  time. 
On  such  trial,  the  defendant  shall  have  the  same  right  to  set 
off  any  improvements  made  on  the  premises,  to  the  amount  of 
the  plaintiff's  claim,  as  is  now  or  shall  hereafter  be  allowed  by 
law;  and  in  estimating  the  plaintiff's  damages,  the  value  of 
the  use  by  the  defendant  of  any  improvements  made  by  him 
shall  not  be  allowed  to  the  plaintiff." ' 

No.  233.    Plea  of  non  assumpsit,  to  suggestion  of  daim  for  mesne  profits. 

In  the Court. 

Term,  18—. 

C.  D. ) 

ats.  [.Ejectment.     Claim  for  mesne  profits. 

A.  B.  )  And  the  defendant,  by  G.  H..  his  attorney,  comes  and  defends 
the  wrong  and  injury,  when,  etc.,  and  says  that  he  did  not  promise  in  man- 
ner and  form  as  tlie  plaintiff  has  above  in  his  said  suggestion  in  that  behalf 
alleged  against  him:  And  of  this  the  defendant  puts  himself  upon  the 
country,  etc. 

For  a  form  of  notice  of  special  matter,  and  forms  of  special 
pleas,  see  the  precedents  in  assumpsit,  aiite,  chapter  lY. 

New  trial — Under  tlie  statute. — The  statute  allows  a  new 
trial  at  any  time  within  one  year  after  judgment,  either  upon 
default,  or  verdict  in  the  action  of  ejectment,  upon  payment 
of  costs;  and  the  party  against  whom  it  is  rendered  shall  be 
entitled  to  have  the  judgment  vacated  and  a  new  trial  granted 

1 1  Starr  &  Curtis  992;  Rev.  Stat.  (1893)  621;  Rev.  Stat.  (1895)  669. 


EJECTMENT.  423 

in  the  cause.'  The  statute  only  applies  to  judgments  in  the 
circuit  court,  and  does  not  authorize  the  vacation  of  a  final 
judgment  of  an  appellate  court.^ 

A  first  new  trial  under  the  statute  is  the  right  of  an  unsuc- 
cessful party  on  a  compliance  with  the  statute,  without  show- 
ing cause.     The  court  has  no  discretion  to  refuse  or  allow  it.^ 

Where  a  plaintiff  in  ejectment,  after  a  judgment  against 
him,  obtains  a  new  trial  under  the  statute,  and  by  amendment 
makes  a  new  party  defendant,  and  before  his  second  trial  dis 
misses  his  suit,  the  former  judgment  is  no  bar  to  a  second 
action  brought  by  him  against  such  new  defendant.  The 
effect  of  the  new  trial  is  to  vacate  and  render  wholly  inopera- 
tive the  prior  judgment,  and  leaves  the  parties  as  they  stood 
before  the  trial,  except  that  the  plaintiff  can  not  claim  a  sec- 
ond new  trial  under  the  statute,  in  the  same  suit.* 

The  right  of  a  party  to  a  new  trial  in  ejectment,  under  the 
statute,  depends  upon  his  payment  of  all  the  costs. 

An  order  granting  a  new  trial  in  ejectment,  under  the  stat- 
ute, upon  the  payment  of  the  costs,  is  interlocutorj'',  and  not 
final;  and  when  the  costs  are  not  paid  within  the  year,  the 
court  may,  at  a  succeeding  term,  vacate  such  order  and  strike 
the  case  from  the  docket. 

On  a  motion  to  vacate  an  order  for  a  new  trial  in  ejectment, 
granted  under  the  statute,  for  the  failure  of  the  party  to  pay 
the  costs,  no  other  evidence  on  the  question  is  necessary  than 
the  records  of  the  court." 

After  the  expiration  of  the  term  at  which  a  new  trial  in 
ejectment  has  been  awarded  under  the  statute,  the  order  for 
the  new  trial  will  become  conclusive,  and  the  court  will  have 
no  power  to  set  such  order  aside,  even  though  all  the  costs 
have  not  been  paid.* 

'  1  Starr  &  Curtis  989;  Rev.  Stat.  Riggs  v.  Savage,  4  Gilm.  129;  Ejn- 

(1893)  619;  Rev.  Stat.  (1895)  667;  see  mons  v.  Bishop,  14  111.  152;  Shackel- 

Chamberlinv.  McCarty,  63  111.  262;  ford  v.  Bailey,  35  111.  387;  Chamber- 

Pugh  V.  Reat,  107  111.  440;  Murphy  lin  v.  McCarty,  63  111.  262;    Lowe 

V.    Riemenschneider,    104    111.   520;  v.  Foidke,  103  111.  58. 

County  V.  Dock  Co.,   131   111.   505;  *  Sheldon  v.  Van  Vleck,-[0(MU.  45; 

Aholz  V.  Durfee,  21  111.  App.  144.  Edwards  v.  Edwards,  22  111.  121. 

2  Lowe  V.  Foidke,  103  111.  58.  «  Setzke  v.  Setzke,  121  111.  30. 

»  Vance  v.  Schuyler,  1  Gilm.  160;  «  County  v.  Dock  Co.,  131  111.  505. 


424  EJECTMENT. 

Revival  of  judgment. — A  judgment  in  ejectment,  by 
analogy  to  other  judgments,  becomes  dormant  after  the  lapse 
of  seven  years,  and  can  only  be  executed  after  that  time  by 
being  revived  by  scire  facias.  After  the  lapse  of  seven  years 
the  court  has  no  power  to  issue  a  writ  of  possession  without  a 
revival  of  the  judgment.' 

Common  source  of  title. — Section  25  of  the  ejectment  act 
provides :  "  If  the  plaintiff,  or  his  agent  or  attorne}^,  will 
state,  on  oath,  upon  the  trial,  that  he  claims  title  through  a 
common  source  with  the  defendant,  it  shall  be  sufficient  for 
him  to  show  title  from  such  common  source,  unless  the  defend- 
ant, or  his  agent  or  attorney,  will  deny,  on  oath,  that  he  claims 
title  through  such  source,  or  will  swear  that  he  claims  title 
through  some  other  source." " 

Where  the  plaintiff  in  ejectment  shows  that  both  parties 
claim  title  through  a  common  source,  and  the  defendant  denies, 
under  oath,  that  he  claims  title  under  such  source,  or  swears 
"  that  he  claims  title  through  some  other  source,"  this  Avill 
impose  on  the  plaintiff  the  burden  of  going  back  of  the  com- 
mon source  and  tracing  his  title  from  the  United  States.' 

The  defendant's  response  to  the  plaintiff's  oath  that  both 
parties  claim  under  a  common  source,  must  be  under  oath,  and, 
whether  made  by  written  affidavit  or  in  the  form  of  an  oral 
statement  at  the  trial,  is  in  the  nature  of  a  pleading  and  is  to 
be  taken  and  construed  most  strongly  against  him.* 

The  proceedings  in  the  action  of  ejectment,  in  Illinois  and 
in  most  of  the  other  states,  are  in  a  great  measure  regulated 
by  statute,  and  it  is  not  deemed  necessary  to  occupy  much  space 
with  the  subject  in  this  work.  For  a  full  understanding  of 
the  nature  of  the  action,  and  the  general  principles  of  law 
governing  it,  the  text  books,  where  the  subject  is  specially 
treated,  as  well  as  the  statute,  should  be  consulted.' 

1  Wilson  V.  Trustees,  138  111.  285;  »  R.  R.  Co.  v.  Hardt,  138  111.  120; 
Bowar  v.  Ry.  Co.,  136  111.  108.     For      Smith  v.  Loatsch,  114  111.  273. 
form  of  scire  facias  to  revive  judg-  *  Ibid. 

ment  in  ejectment  see  No.  298  jwst.  ^  See  Adams  on  Eject. ;  2  Cooley's 

2  1  Starr  &  Curtis  987;  Rev.  Stat.  Blackstone,  198-206;  2  Greenl.  Ev., 
(1893),  618;  Rev.  Stat.  (1895).  666;  see      Sees.  303-337. 

Smith  V.  Loatsch,  114  111.  273. 


CHAPTER  XIII. 

DEBT. 

When  the  action  lies,  etc. — The  action  of  debt  lies  to  re- 
cover money  due  upon  simple  contracts,  express  or  implied, 
whether  verbal  or  written;  upon  contracts  under  seal,  or  of 
record;  and  upon  legal  liabilities." 

A  joint  action  of  debt  lies  against  two  persons  who  have 
bound  themselves  by  the  same  writing  to  pay  a  sum  of  money, 
the  one  with  and  the  other  without  seal.* 

It  lies  on  statutes,  by  a  party  aggrieved,''  or  by  a  common 
informer;  and  whenever  the  demand  is  for  a  sum  certain,  or 
is  capable  of  being  readily  reduced  to  a  certainty.^ 

On  simple  contracts  and  legal  liabilities,  debt  lies  for  money 
lent,  paid,  had  and  received,  and  due  on  an  account  stated; 
for  interest  due,  for  work  and  labor,  for  fees,  for  goods  sold, 
and  for  use  and  occupation;^  and  it  is  laid  down  as  a  general 
rule,  that  debt  lies  upon  every  contract  in  deed  or  in  law." 

Debt  lies  upon  simple  contracts  wherever  indebitatus  as- 
sumpsit will  lie,  and  is  a  concurrent  remedy  therewith;'  audit 
may  be  supported  on  a  quantum  meruit^ 

'  1  Chit.  PI.  97;  Repiiblica  v.  La-  ^  1  Chit.  PI.  98;  Davifi  v.  Shoe- 
coze,  2  Dall.  123;  Kelly  v.  Davis,  1  maker,  1  Rawl.  135;  McKean  v. 
Hend.  (Tenn.)  71;  Crocket  v.  Moore,  Whitney,  3  Denio  453;  Collins  v. 
3  Sneed  (Tenn.)  145.  Johnson,  1  Hemp.  279. 

2  Oldham  v.  Hunt,  4  Humph.  332;  «  1  Chit.  PL  110;    Elder  v.  Rouse, 

Butcher  v,   Carile,    12  Gratt.  (Va.)  15  Wend.  220. 

520.  '  Bedell  v.  Janney,   4  Gilm.  193; 

^  See  Gushing  Y.  Dill,  2  Scam.  4m.  U.  S.  v.  Colt,   1   Peters  (C.  C.)  145; 

*  1  Chit.   PI.  98;   U.  S.   v.  Colt,  1  Smith  v.  Lotcell,  8  Pick.  178;  Lar- 

Peters  (C.  C.)  147;  Thomas  v.  Allen,  mon  v.  Carpenter,  70  111.  549. 

1  Hill  145;  Sims  v.  Anderson,  8  Leigh  *  Smith  v.  Lowell,  8  Pick.  178;  Van 

479;    Home  v.    Semple,   3   McLean  Deusen    v.    Bloom,    18    Pick.    229; 

150;  Mayor  v.  Butler,   1  Barb.  335;  Thompson  v.  French,    10  Yerg.  452; 

Hoy  V.  Hoy,  44  III.  469.  1  Chit.  PI.  97. 

(425) 


426  DEBT. 

The  action  also  lies  to  recover  money  due  on  any  specialty,. 
or  contract  under  seal  to  pay  money,  as  on  single  bonds,  on 
charter  parties,  on  policies  of  insurance  under  seal;  and  on 
bonds  conditioned  for  the  payment  of  money,  or  the  perform- 
ance of  any  other  act; '  on  leases,  for  rent  or  penalties;  on 
mortgage  deeds,  and  on  annuity  deeds.''  AVhere,  however,  a 
gross  sum  is  payable  by  installments,  debt  will  not  lie  until  the 
last  installment  falls  due; '  though  for  rent  payable  quarterly, 
or  otherwise,  or  for  an  annuity,  or  on  a  stipulation  to  pay  a 
certain  sum  on  one  day  and  the  like  sum  on  another,  debt  lies 
on  each  default;  and  even  where  one  sum  is  payable  by  install- 
ments, if  the  payment  is  secured  by  a  penalty,  debt  is  sustain- 
able for  such  penalty  on  such  default." 

The  statute  on  adminstration,  in  Illinois,  authorizes  several 
successive  suits  on  an  executor's  or  administrator's  bond,  for 
the  use  of  any  person  or  persons  injured,  until  the  whole  pen- 
alty shall  be  recovered.*  Debt  is  the  proper  form  of  action 
for  a  violation  of  an  ordinance  of  an  incorporated  town.* 

It  lies  upon  a  bond  made  to  a  coroner  in  an  action  of  re- 
plevin.'' It  always  lies  on  a  judgment  of  a  court  of  record, 
and  may  be  brought  although  the  plaintiff,  at  the  time  of 
bringing  the  suit,  may  be  entitled  to  an  execution  on  his  judg- 
ment. * 

An  action  of  debt  may  be  brought  on  an  appeal  bond  by  the 
appellee,  the  moment  judgment  is  rendered  in  the  cause  ap- 
pealed, unless  the  money  is  paid  immediately.'  Where  the 
property  of  another  has  been  taken  and  converted,  the  tort 
may  be  waived,  and  assumpsit  or  debt  brought  for  its  value.'" 

'1  Chit.  PI.  99;  see  Adam  v.  Ar-  ''Manning  v.  Pierce^2    Scam.  6; 

nold,  86  111.  185.  see  SjJeer  v.  Skinner,  35  111.  282. 

n  Chit.  Fl.  99;  Hoy  V.  Hoy,  Um.  ^  Greathouse    v.    Smith,   3  Scam. 

469.  541;  Ry.  Co.  v.  Miller,   43  111.   199; 

n   Chit.  PI.  102;  Hoyx.  Hoy,   44  Ames\.  Hoy,    13  Cal.  11;  Smith  v. 

111.  469.  Stevens,  133  111.  183. 

n  Chit.  PI.    102;    Spark  x.  Gari-  ^  Gregory  x.  Stark,  3  Scam.  611. 

gitis.  1  Binn.  152.  ^^  Alsbrookx.  Hathaway,  3  Sneed 

sRev.  Stat.  (1895),  113;  1  Starr  &  (Tenn.)  454;  see  Bull    v.    Pratt,   1 

Curtis  203;  People  x.  Randolph,  24  Conn.  347;  iJeed  v.  itenseZaer,  3  Cow. 

111.  324;  Rev.  Stat.  (1893),  113.  893. 

« Town  V.  Block,  36  111.  507. 


DEBT.  •  427 

Where  one  party  takes  undue  advantage  of  another,  and 
compels  hhn  to  pay  money  contrary  to  equity  and  good  con- 
science, he  may  recover  it  again  in  an  action  of  debt.' 

It  lies  on  a  decree  in  chancery  which  has  the  effect  of  a 
judgment  at  law,''  such  as  a  decree  for  a  sum  of  money  as  ali- 
mony,^ or  a  decree  fixing  the  balance  of  an  account  between 
the  parties;  *  though  there  is  some  conflict  of  authorities  on 
this  question."  It  may  be  maintained  on  a  decree  of  a  foreign 
court  which  finds  a  sum  of  money  to  be  due,  and  directs  its 
payment;  but  not  on  a  decree  for  the  performance  of  acts  other 
than  the  payment  of  money.* 

Debt  lies  on  the  judgment  of  a  justice  of  the  peace  of  an- 
other state.' 

It  has  been  held  that  this  action  may  be  maintained  by  the 
assignee  against  the  maker  of  a  promissory  note;"  but  in  H'd- 
horn  V.  Artus,  3  Scam.  344,  a  doubt  was  expressed  whether 
this  can  be  done. 

An  action  of  debt  lies  upon  an  instrument  under  seal  for  the 
payment  of  a  sum  certain,  to  a  specified  person,  and  at  a  cer- 
tain time,  without  alleging  or  proving  the  consideration  for 
which,  or  the  transaction  in  which,  the  instrument  Avas  made, 
although  it  contains  a  statement  or  explanation  of  such  con- 
sideration or  transaction.  Such  statement  does  not  change  the 
character  of  the  instrument." 

Debt  lies  also  on  an  award  for  the  payment  of  money,'"  and 
that  without  regard  to  the  penalty  of  the  bond;"  and  on  by- 
laws, for  fines  and  amercements.'^    Debt  can  not  be  sustained  in 

^County  V.  Simmons,^  GWm.hlZ.  ''Cole    v.  Driskell,    1   Blackf.   16; 

^  Williams  V.  Preston,  3.  3.  Max^\\.  Sheldon  v.  Hojikins,  7  Wend.  435: 

600;  Elliott  \.  Ray,  2  Blackf.  31.  Cleveland  v.  Rogers,  6  Wend.  438; 

^ifou-orriv.  ifozrard,  15  Mass.  196;  see  Trader  v.   3JeKee,  1  Scam.  558; 

see  Elliott   v.    Ray,   2  Blackf.    31;  Thomas  v.  Robinson,  3  Wend.  267. 

Trimble  v.  State,  4  Blackf.  42;  Dow  »  Taylor    v.    Walpole,    1    Blackf. 

V.  Blake,  148  111.  76.  378;   Loose  v.  Loose,  36  Penn.  538; 

*  Thrall  v.  Waller,  13  Vt.  231.  1  Swan's  Pr.  378;  2  Chit.  PI.  388,  n. 

«  Warren  v.  McCarthy,  25  111.  95;  ^  Nash  v.  Nash,  16  111.  79. 

see  Hugh  v.  Higgs,  8  Wheat.  697.  '»  Stanley  v.  Chappell,  8  Cow.  235; 

«  Warren  v.  McCarthy,  25  111.  95;  1  Chit.  PL  99. 

Post  V.  Neafie,  3  Caine  22;  Evans  v.  "  Ex  parte  Wallis,  7  Cow.  522. 

Tatem,  9  S.  &  R.  252.  '"  1  Chit.  PI.  99. 


428  *  DEBT. 

any  case,  unless  the-  demand  is  for  a  sum  certain,  or  for  a  pe- 
cuniary demand  which  can  readily  be  reduced  to  a  certainty.' 

An  action  of  debt  will  not  lie  upon  an  obligation  which  sa3's 
"  due  one  thousand  and  fifty  dollars,  payable  in  county  orders, 
of  such  size  and  dimensions  as  the  promisor  may  be  able  to 
furnish;"  such  an  obligation  not  being  for  the  money  named, 
but  for  the  thing  to  be  furnished.''  A  joint  action  of  debt 
will  not  lie  against  a  lessee,  in  a  lease  under  seal,  and  a  surety 
who,  by  a  writmg  not  sealed  on  the  back  of  the  lease,  becomes 
surety  for  the  payment  of  the  rent.' 

Where  a  vendee  sued  a  vendor  of  land,  in  debt,  for  a  part 
of  the  purchase  money  paid,  declaring  specially  on  the  con- 
tract of  sale,  which  was  under  seal,  and  alleging  that  the 
vendor  could  not  convey,  by  reason  of  incumbrances,  it  was 
held  that  the  action  would  not  lie,  but  that  the  remedy  was 
in  covenant.* 

Where  a  constable  has  collected  money  otherwise  than  by 
virtue  of  process,  an  action  will  not  lie  on  his  bond  for  a  fail- 
ure to  pay  over  the  money.*  Where  a  person  executes  a  bond 
as  surety  with  another,  whose  name  at  the  time  appears  signed 
to  the  bond,  but  whose  signature  has  been  forged,  the  person 
so  executing  such  bond  wnll  be  liable  thereon."  Debt  lies  by 
the  beneficiary  against  a  mutual  benevolent  association  to  re- 
cover the  debt  benefit  secured  by  a  certificate  of  membership 
therein.' 

Actions  of  debt  on  statutes,  in  Illinois. — The  statute  of 
Illinois  provides  that  any  person  who  shall  cut,  fell,  box,  bore 
or  destroy,  or  carry  away  any  of  the  trees  or  saplings  therein 
enumerated  without  permission  of  the  owner  of  the  land,  shall 
forfeit  and  pay  for  each  tree  or  sapling  so  cut,  etc.,  the  sum  of 
ei^ht  dollars;  to  be  recovered  either  by  an  action  of  debt,  in 
the  name  and  for  the  use  of  the  owner  of  the  land,  or  by 

>  Little  V.   Mercei',  9   IMo.    218;  1  «  Davis  v.   Buckles,    89   III.    237; 

Chit.  PI.  102;  Mix  v.  Nettleton,  29  Stoner  v.  Milliken,  85  III.  218;  Itis. 

111.  245;  Haynesv.  Lucas,  50  111.  436.  Co.  v.  Brooks,  51  Mo.  506. 

2  3Iix  V.  Nettleton,  29  III.  245.  '  Sicift  v.  Ben.  Ass'n,  96  111.  311 

3  Turney  v.  Penn,  16  111.  485.  Laivrence  v.  Lis.  Co.,  5111.  App.  280 
i  Haynes  V.  Lucas,  50111.436.  Ben.  Ass'n  v.  Hall,  118  111.  169 
6  Henckler  v.  Schulze,  27  111.  39.  Society  v.  Miller,  23  111.  App.  341. 


DEBT.  429 

action  qui  tam^  in  the  name  of  any  person  who  will  first  sue 
for  and  recover  the  same;  the  one-half  lor  the  use  of  the 
person  so  suing,  and  the  other  half  for  the  use  of  the  owner  of 
the  land/ 

If  any  drover  drives  off,  or  knowingly  and  willingly  permits 
to  be  driven  off,  from  the  premises  of  any  citizen,  or  from  the 
range  in  which  the  stock  of  any  such  citizen  may  run,  to  any 
distance  exceeding  five  miles  from  such  premises  or  range, 
any  horses,  mules,  neat  cattle,  hogs  or  sheep  belonging  to  such 
citizen,  or  permits  any  such  stock  to  remain  with  his  drove  for 
a  longer  period  than  two  days  and  nights  at  any  one  time, 
the  owner  may  bring  an  action  of  debt,  and  recover  double 
the  value  of  such  stock  so  driven  away  or  detained." 

If  any  engineer  on  any  railroad  shall  start  his  train,  at  any 
station,  etc.,  without  ringing  the  bell  or  sounding  the  whistle 
a  reasonable  time  before  starting,  he  shall  forfeit  the  sum  of 
not  less  than  $10,  nor  more  than  $100,  to  be  recovered  in  an 
action  of  debt  in  the  name  of  the  people  of  the  State  of  Illi- 
nois, and  such  corporation  shall  also  forfeit  a  like  sum,  to  be 
recovered  in  the  same  manner.* 

Every  engineer  and  the  railroad  corporation  failing  to  come 
to  a  full  stop  at  a  distance  of  not  less  than  200  feet,  nor  more 
than  800  feet  from  the  draw  in  every  bridge  which  crosses  any 
stream  or  harbor  by  swing  or  draw  bridge,  or  from  the  point 
of  intersection  or  crossing  of  another  railroad,  and  in  plain 
sight  of  the  same,  before  such  draw,  intersection  or  crossing  is 
passed  b}^  any  such  train,  shall,  for  each  offense,  forfeit  $100, 
to  be  recovered  in  an  action  of  debt,  in  the  name  of  the  people 
of  the  State  of  Illinois,  or  by  any  person  who  may  sue  for  the 
same.* 

If  any  public  officer,  having  in  custody  any  person  restrained 
of  his  liberty,  etc.,  refuses  (except  in  case  of  imminent  dnnger 
of  escape,)  to  admit  any  practicing  attorney,  whom  such  per- 

>  Rev.  Stat.  (1893)  1436;  Rev.  Stat.  '^  Rev.  Stat.  (1893)  615;  Rev.  Stat. 

(1895)  1524;  2  Starr  &  Curtis  2388;  (1895)  663;  1  Starr  &  Curtis,  997;  see 

Gehlmrt  v.  Adams,  23  111.  397;  Elder  Form  No.  256,  post. 
v.  Hilzheim,  35  Miss.  231;  Behmeyer  ^  Rev.  Stat.  (1893)  1116;  Rev.  Stat. 

V.  Odell,  31  111.  App.  353;  see  Form  (1895)  1200;  2  Starr  &  Curtis,  1937. 
No.  255,  posf.  *Id. 


430  DEBT. 

son  may  desire  to  see  or  consult,  to  see  and  consult  such  per- 
son alone  and  in  private,  at  the  jail  or  other  place  of  confine- 
ment, such  officer  is  liable  to  forfeit  and  pay  to  the  person 
aggrieved  one  hundred  dollars,  to  be  recovered  bv  an  action  of 
debt.' 

The  statutes  provide  for  numerous  qui  tarn  actions,  not  par- 
ticularly referred  to  here,  most  of  which  are  usually  prosecuted 
before  a  justice  of  the  peace,  as  the  penalties  come  within  his 
jurisdiction.  If  a  statute  prohibits  the  doing  of  an  act  under 
a  penalty,  and  does  not  prescribe  any  mode  of  recovery,  an 
action  of  debt  lies.^ 

Commencement  of  tlie  action. — It  has  already  been  shown 
in  what  cases  security  for  costs  is  required  to  be  filed  before 
the  commencement  of  an  action  {ante,  page  13).  The  prcB- 
cipe  for  a  summons,  or  capias  ad  respondendum,  may  be  in  the 
following  form : 

Praecipe /or  summons,  or  capias,  in  debt. 

In  the Court  of  the  County  of ,  in  the  State  of  Illinois. 

A.  B.  ) 
vs.     [  Debt. 

C.  D.  \  Debt  $ .     Damages  $ . 

Tlie  clerk  of  the  said  court  will  issue  a  summons,  (or,  capias  ad  respon- 
dmdinn,)  as  above,  directed  to  the  sheriff  of  the  county  of ,  and  return- 
able to  the term,  18 — . 

(Date.) 

E.  F.,  Attorney  for  Plaintiff. 

To  J.  K.,  Clerk,  etc. 

In  debt  gui  tarn,  omit  the  damages.  The  sum  demanded  as 
the  debt  should  be  specified  in  the  prcecipe,  as  a  summons  in 
debt  is  defective  if  it  does  not  demand  a  particular  sum  as  the 
debt.^ 

The  declaration. — As  in  other  actions,  the  declaration 
ought  to  pursue  the  writ,  as  to  the  character  of  the  action, 
the  parties,  and  the  extent  of  the  demand.* 

'Rev.  Stat.  (1893)  510;  Rev.  Stat       right,  27  111.  App.  559;   Durbin  v. 
(1895)  553;  1  Starr  &  Curtis  818;  see      People,  54  111.  App.  101. 
Form  No.  257,  post.  *  Weld  Y.Hubbard,  11  111.  573. 

2  1  Head  (Tenn.)  71;    Vaughan  v.  ^Weld   v.    Hubbard,   11    111.  573; 

Thompson,  15  111.  39;   City  v.  Eii-      Thorj^ev.  Starr,  11  III  199;  Carpen- 
ter V.  Hoyt,  17  111.  529. 


DEBT.  431 

Debt  lies  on  a  special  contract  to  pay  money;  and  if  such 
contract  is  specially  declared  upon,  and  is  not  under  seal,  so 
that  a  considaration  is  necessary,  the  declaration  should  show 
such  consideration,  and  may  in  general  be  framed  like  a  dec- 
laration in  assumpsit,  with  this  exception,  that  it  should  be 
alleged  that  the  defendant  "  agreed,"  not  that  he  "  promised  '' 
to  pay,'  A  count  commencing  and  concluding  in  debt,  is  not, 
however,  to  be  regarded  as  a  count  in  assumpsit  merely  because 
the  word  "  promised  "  is  used  instead  of  "  agreed."  ^ 

In  declaring  upon  a  writing  not  under  seal,  no  profert  is 
made;  ^  and  in  Illinois,  by  statute,  it  is  not  necessary,  in  any 
pleading,  to  make  profert  of  the  instrument  alleged.*  Oyer 
can  not  be  claimed  of  a  deed  which  appears  from  the  pleadino- 
to  be  lost,  or  in  the  possession  of  the  adverse  party.* 

A  count  on  a  specialty  and  one  on  simple  contract  may  be 
joined  in  the  same  declaration.'  But  counts  in  debt  and  in 
assumpsit  can  not  be  joined.'  In  a  declaration  on  a  judo-ment 
of  a  justice  of  the  peace  in  another  state,  the  jurisdiction  of 
the  justice  must  be  shown.* 

In  a  suit  on  a  bond  given  by  a  deputy  sheriff  for  the  faithful 
performance  of  the  duties  of  his  office,  the  plaintiff  must  assign 
breaches,  and  can  not,  without  such  assignment,  take  a  verdict 
for  even  nominal  damages.'  A  general  assignment  of  a  breach, 
which  is  sufficient  to  show  on  what  account  the  suit  is  brouo-ht 
is  sufficient.'" 

In  an  action  upon  a  penal  bond,  in  Illinois,  the  breaches  are 
to  be  assigned  in  the  declaration,  and  as  many  breaches  may 
be  assigned  in  one  count  as  may  be  deemed  necessary,  or  the 
declaration  may  contain  as  many  counts  as  there  are  breaches 

'  Emery  v.  Fdl,  2  Term  S8;  1  Chit.  gins,  2  Root  482;  Republic  v.  Coates, 

PI.  362.  1  Yeates  2. 

^Crnikshank  v.  Brown,  5  Gilm.  ^l  Chit.  PI.  181;  Man  v.  LobdeU, 

75;    McGinnity    v.    Laguerenne,    5  13  Johns.  462;  Farnham  v.    Hay,  3 

Gilm.  101;   Smith  v.    Webb,  16    111.  Blackf.  167. 

105.  "I  Adams  v.  Hardin,  19  III.  273. 

8 1  Chit.  PI.  313.  « Sheldon  v.  Hopkins,  7  Wend.  435 : 

'Rev.  Stat.  (1893)  1073;  Rev.  Stat.  Trader  v.  McKee,  1  Scam.  5>8. 

(1895)  1157;  2  Starr  &  Curtis  1786.  » Barnard  v.  Darling.  11  Wend.  30. 

*1  Chit.  PI.  314;  Paddock  v.  Hig-  ^'>  Governor  v.  Ridgway.  12  111.  15; 

Huglies  v.  Smith,  5  Johns.  1C3. 


432   .  DEBT. 

of  the  bond.  In  the  former  case,  each  breach  answers  the 
place  of  a  count,  and  is  subject  to  a  demurrer,  which  may  be 
sustained  as  to  some  and  overruled  as  to  others,  the  same  as  if 
the  breaches  were  set  forth  in  separate  counts/  Assignments 
of  breaches  of  the  condition  of  a  bond  must  be  specific  enough 
to  inform  the  defendants  of  what  particular  acts  they  have 
been  guilty." 

In  a  declaration  on  a  bond  conditioned  that  the  defendant 
would  not  suffer  any  unlawful  assemblies  about  his  house,  an 
assiernment  of  a  breach  that  he  did  suffer  unlawful  assemblies 
in  and  about  his  house  during  the  continuance  of  his  license  is 
not  sufficient/  So,  in  a  suit  on  a  constable's  bond,  the  declara- 
tion should  set  out  the  particular  breach  of  duty  in  the  officer.* 
It  is  not  necessary  for  the  plaintiff,  in  declaring  in  debt  on  a 
recognizance  of  bail,  to  allege  that  a  fi.  fa.  had  been  issued 
against  the  principal  before  the  return  of  the  ca.  saJ" 

A  breach  of  the  condition  of  a  bond  "  to  free  the  land  from 
all  legal  incumbrances,  either  by  deed  or  mortgage  now  in  ex- 
istence and  binding  on  the  premises,  by  the  20th  of  February," 
is  not  well  assigned  by  following  and  negativing  the  words 
of  the  condition,  and  such  assignment  does  not  necessarily 
amount  to  a  breach.  The  plaintiff  ought  to  show  some  incum- 
brance existing  at  the  date  of  the  bond  and  on  the  20th  of 
February,  or  at  the  commencement  of  the  suit.' 

In  an  action  on  a  bond  which  was  conditioned  for  the  pay- 
ment of  a  certain  sum  whenever  the  obligor  should  be  released 
from  another  penal  bond  previously  executed,  it  was  not 
averred  that  the  obligor  had  been  released  or  discharged.  The 
declaration  was  held  bad.' 

In  a  suit  on  an  official  bond,  an  assignment  of  breaches  in 
the  declaration  is  held  necessary.'     Where  the  condition  of  a 


1  Hibhard  v.  3TcKindley,  28  111.  240 
see  Brady  v.  Sjnwck,  27  111.  478 
People  V.  Gregory,  11  Bradw.  370 
Robinson  v.  People,  8  Bradw.  279 
Sugden    v.    Beasley,   9  Bradw.    71 


•>  Graham  v.  State,   6  Blackf.  32; 
Major  V.  State,  8  Blackf.  71. 

*  Gillespie  v.  White,  16  Johns.  117. 

*  Julliand  v.  Burgott,  11  Johns.  6. 
"*  Hart  V.  Tolman,  1  Gilm.  l;Beebe 


People  V.  Harmon,  15  Bradw.  189.       v.  Bank,  1  Johns.  554. 
"^  State  V.  Coffee,  6  Ohio  150.  ^  State  v.  Coffee,  6  Ohio  150;  Boles 

«  Boles  V.  McCarty,  6  Blackf.  428.      v.  McCarty,  6  Blackf.  428. 


DEBT.  433 

bond  may  be  broken  by  the  omission  or  commission  of  a  single 
act,  the  breach  may  be  assigned  in  the  words  of  the  condition; 
but  if  it  may  be  broken  in  various  ways,  the  assignment  should 
state  the  particular  mode  of  the  breach.' 

In  debt  on  a  bond,  given  on  appeal  of  an  action  of  forcible 
entry  and  detainer  to  the  supreme  court,  and  conditioned  to 
pay  the  value  of  the  use  and  occupation  of  the  premises,  it  is 
not  necessary  to  aver  in  the  declaration  that  the  defendant 
had  enjoyed  the  use  and  occupation  of  the  premises.  In  such 
case,  it  is  only  necessary  to  allege,  in  assigning  breaches  of  the 
bond,  that  the  plaintiff  had  been  deprived  of  the  possession 
during  the  pendency  of  the  appeal.* 

Where  a  penal  bond  is  executed  by  two  parties,  in  which 
they  mutually  bind  themselves  to  desist  from  all  interference 
w^ith  a  certain  tract  of  land,  to  which  each  has  previously  set 
up  a  claim,  until  the  merits  of  their  respective  claims  shall  be 
settled  or  adjusted,  it  seems  an  action  is  maintainable  for  a 
breach  of  the  condition.* 

Where  a  declaration  describes  an  appeal  bond  to  be  payable 
on  demand,  and  then  proceeds  to  set  out  the  condition  at  large, 
so  that  the  true  character  of  the  bond  appears,  the  bond  may 
be  offered  in  evidence,  although  it  is  not  payable  on  demand, 
but  on  the  affirmance  of  the  judgment.* 

A  declaration  upon  an  appeal  bond  is  sufficient,  which  avers 
that  the  appeal  was  not  prosecuted,  and  that  the  judgment  ap- 
pealed from  was  not  paid,  and  that  such  judgment  was  affirmed. 
It  need  not  aver  that  the  order  dismissing  the  appeal  was  filed 
in  the  court  from  which  the  appeal  was  taken.  An  averment 
that  the  judgment  appealed  from  was  final,  or  that  th(i  judge 
of  the  court  from  which  the  appeal  was  taken  approved  the 
bond,  is  unnecessary.* 

It  is  well  settled  that  in  actions  to  recover  a  penalty  under 
a  highly  penal  statute,  the  averments  of  the  declaration  must 
bring  the  case  clearly  within  the  prohibition,  and  that  the  pro- 
visions of  the  statute  must  be  strictly  construed.     The  declara- 

'  County  V.    Bledsoe,  12  111.  267;  «  Wilcoxen  v.  Roby,  3  Gilm.  475. 

Major  V.  State,  8  Blackf.  71.  *  Walker  v.  Welch,  14  111.  277. 

'^Higgins  v.  Parker,  48  111.  445.  '  Sutlierland  v.  Phelps,  22  III.  92. 
28 


434  DEBT. 

tion  in  such  a  case  is  to  be  construed  most  strongly  against 
the  pleader,  and  every  fact  necessary  to  constitute  the  offense 
for  which  the  penalty  is  sought  to  be  recovered  must  be 
distinctly  averred,  and  no  intendments  will  be  allowed  in  favor 
of  the  prosecution.' 

PRECEDENTS  OF  DECLARATIONS  IN  DEBT. 

No.  S34.     Common  indebitatus  count. 

In  the Court. 

Term.  18—. 

State  of  Illinois,  )     . 
County  of .      J       *      A.  B.,  plaintiff,  by  E.  F.,  his  attorney,  com- 
plains of  C.  D. ,  defendant,  of  a  plea  of  debt:    For 

that  whereas  the  defendant,  on  the day  of  ,  in  the  year  18 — ,  in 

the  county  aforesaid,  was  indebted  to  the  plaintiff  in  the  sum  of dol- 
lars, for  {here  state  tJie  subject-matter  of  the  debt,  precisely  as  in  assumpsit, 
ante,  pages  76-77,  and  then  proceed:)  which  said  sum  of  money  was  to  be 
paid  to  the  plaintiff  by  the  defendant,  when  he  should  be  thereto  requested : 
Yet  the  defendant,  though  requested,  has  not  paid  to  the  plaintiff  the  said 
sum  of  money,  or  any  part  thereof,  but  refuses  so  to  do;  to  the  damage  of 
the  plaintiff  of dollars,  and  therefore  he  brings  liis  suit,  etc. 

If  there  are  several  counts,  the  breach  should  be  as  fol- 
lows: 

Yet  the  defendant,  though  requested,  has  not  paid  to  the  plaintiff  the 
several  sums  of    money  in  the  several  counts  above  specified,  together 

amounting  to  the  sum  of dollars,  or  any  part  thereof,  but  refuses  so  to 

do;  to  the  damage,  etc. 

It  has  been  usual,  in  the  commencement  of  the  declaration, 
to  say  that  the  plaintiff  complains  of  the  defendant  "  of  a  plea 

that  he  render  to  the  plaintiff  the  sum  of dollars,  which 

he  owes  to  and  unjustly  detains  from  him;"  and  this  was  to 
be  the  aggregate  of  all  the  sums  demanded  in  the  different 
counts.''  Whether  strictly  necessary  or  not,^  it  would  seem  to 
be  well  to  state  the  aggregate  of  the  sums  claimed  in  the  sev- 
eral counts;  and  this  should  be  the  debt  demanded  by  the 

'  People  V.  Fesler,  145  111.  150.  °  1  Qiit.  PI.  309;  1  Swan's  Pr.  185,  i, 

2 1  Chitty's  PI.  309,  325,  a;   2  Chit.  349,  a,  b;  Lord  v.  Houston,  11  East 

PL  385,  387;  People  v.  Van  Eps,  4  62;  Duppa  v.  Mayo,  1  Saund.  288, 

Wend.  387.  n.  1. 


DEBT.  435 

summons,  which  must  demand  a  particular  sum  as  the  debt; ' 
but  this  statement  of  the  debt  may  be  made  in  the  breach,  as 
in  the  forms  here  given. 

"  The  debt  demanded  should  regularly  be  the  aggregate  of 
all  the  sums  alleged  to  be  due  in  the  different  counts;  but  a 
mistake  in  this  respect,  Avhether  more  or  less,  will  not  be  a 
cause  of  demurrer,  nor  is  it  necessary  to  prove  that  the  debt 
amounted  to  precisely  the  sum  stated  to  be  due." " 

Where  the  form  used  in  the  commencement  is,  "of  a  plea 
that  he  render,"  etc.,  the  words  oives  to  and  (the  d(3bet)  should 
regularly  be  omitted  in  actions  by  or  against  executors  or  ad- 
ministrators, who  in  general  are  to  be  sued  in  the  detiiiet  only .^ 
But  it  seems  this  distinction  is  no  longer  strictly  observed:* 
and  where  the  action  is  simply  described  in  the  commence- 
ment as  "  a  plea  of  debt,"  which  is  sufficient,*  the  distinction 
is  of  course  not  made. 

It  has  also  been  usual,  in  each  count,  after  setting  forth  the 
subject-matter  of  the  debt,  etc.,  to  say,  "  whereby,  and  by 
reason  of  the  last  mentioned  sum  of  money  being  and  remain- 
ing unpaid,  an  action  hath  accrued  to  the  plaintiff  to  demand 
and  have  of  the  defendant  the  said  sum  of  money  last  men- 
tioned, parcel   {or   '  other  parcel,'  or  '  residue ')  of   the  said 

sum  of dollars  above  demanded ; "  but  this  allegation  is 

unnecessary,  and  the  usual  breach  at  the  end  of  the  declara- 
tion will  suffice.  "  The  distinction  is  said  to  be,  that  when- 
ever the  debt  arises  merely  by  the  judgment  or  obligation,  etc., 
and  not  from  anything  dehors^  a  non-performance  of  the  obliga- 
tion is  to  be  laid,  and  the  conclusion  is  to  be  with  the  breach 
ad  damnum',  but  that  where  the  debt  arises,  not  by  the  obliga- 
tion alone,  but  also  by  some  matters  dehors  stated  in  the 
declaration,  there  the  count  should  conclude  per  quod  actio 
accrevit,  etc.,  as  in  debt  on  a  lease  for  rent." "  The  clause 
"  whereby,"  etc.,  is  not,  it  seems,  in  the  old  entries,  except  in 

'  Weldv.  Hubbard,  11  111.  573.  ■•  1  Swan's  Pr.  185,  i;  2  Chit.   PI. 

2 1  Chit.  PI.  309;  Lord  v.  Houston,      383,  p. 
11    East    62;    Duppa    v,    31ayo,    1  '  1  Swan's  Pi-.  185,  i;  Wil.  Pr.  82, 

Saund.  288,  n.  1.  83,  n;  see  1  Chit.  PI.  361. 

n  Chit.  PI.  310;  2  Chit.  PL  385.  «1   Chit.  PI.  310;   Gilb.,  tit.  Debt, 

414,  415;  see  1  Swan's  Pr,  385,  a. 


436  DEBT. 

cases  where  the  debt  arises  from  some  misfeasance,  as  on  a 
penal  statute,  or  against  a  sheriff  for  an  escape,  oi"  on  leases, 
awards,  etc/ 

No.  235.    Payee  against  maker  of  promissory  note.    Special  count  on  note, 
atid  consolidated  common  counts. 

In  the Court. 

Term,  18  — . 

State  of  Illinois,    ) 

County  of  ,      f  set.     A.  B.,  plaintifT.  by  E.  F.,  his  attorney,  complains 

of  C.  D.,  defendant,  of  a  plea  of  debt:    For  that 

whereas  the  defendant,  on  the day  of ,  in  the  year  18—,  in  the 

county  aforesaid,  made  his  promissory  note,  and  delivered  the  same  to  the 

plaintiff,  and  thereby  then  and  there  promised  to  pay, after  the 

date  thereof,  to  the  plaintiff  or  his  order,  the  sum  of dollars,  for  value 

received,  with  interest  thereon,  etc.:  by  means  whereof  the  defendant,  on 
the  day  first  aforesaid,  there  became  liable  to  pay  to  the  plaintiff  the  sum 
of  money  in  the  said  note  specified,  according  to  the  tenor  and  effect 
thereof. 

And  whereas  also  the  defendant,  on  the day  of  ,  in  the  year 

18_,  in  the  county  aforesaid,  was  indebted  to  the  plaintiff  in  the  sum  of 
dollars,  for  goods,  chattels  and  effects  before  that  time  sold  and  deliv- 
ered by  the  plamtiff  to  the  defendant,  at  his  request;  and  in  the  like  sum 
for  goods,  chattels  and  effects  before  that  time  bargained  and  sold  by  the 
plaintiff  to  the  defendant,  at  his  request;  and  in  the  like  sum  for  work  and 
services  before  that  time  done  and  bestowed,  and  materials  for  the  same 
work  furnished,  by  the  plaintiff  for  the  defendant,  at  his  request;  and  in 
the  like  sum  for  money  before  that  time  lent  by  the  plaintiff  to  the  defend- 
ant, at  his  request;  and  in  the  like  sum  for  money  before  that  time  paid 
and  expended  by  the  plaintiff  for  the  use  of  the  defendant,  at  his  request; 
and  in  the  like  sum  for  money  before  that  time  received  by  the  defendant, 
for  the  use  of  the  plaintiff;  and  in  the  like  sum  for  interest  on  divers  sums 
of  money  before  that  time  forborne  by  the  plaintiff  to  the  defendant,  at  his 
request,  for  divers  spaces  of  time  before  then  elapsed;  and  in  the  like  sum 
for  money  found  to  be  due  from  the  defendant  to  the  plaintiff,  on  an  ac- 
count then  and  there  stated  between  them;  which  said  several  sums  of 
money,  so  due  to  the  plaintiff  as  aforesaid,  were  respectively  to  be  paid  to 
him  by  the  defendant,  on  request. 

Yet  the  defendant,  though  often  requested,  and  though  the  day  of  pay- 
ment in  the  said  note  mentioned  has  elapsed,  has  not  paid  to  the  plaintiff 
the  several  sums  of  money  in  the  several  counts  above  specified,  together 

amounting  to  the  sum  of dollars  (the  sum  mentioned  as  the  debt  in  the 

summons,  being  the  aggregate  of  all  the  suiti§  demanded  in  the  several 
counts),  or  any  part  thereof,  but  refuses  so  to  do;  to  the  damage  of  the 
plauitiff  of dollars,  and  therefore  he  brings  his  suit,  etc. 

» 2  Chit.  PI.  385,  i;  Gilb.,  tit.  Debt,  413;  1  Swan's  Pr.  385,  a. 


DEBT.  437 

The  damages,  in  this  action,  are  in  general  merely  nominal; 

but  if  there  is  a  demand  for  interest,  the  damages  laid  should 
be  suificient  to  cover  it.  Interest,  whether  expressly  reserved 
in  the  contract,  or  given  by  law,  is  an  incident  to  the  debt, 
and  is  reco veered  in  the  form  of  damages,  without  being  spe- 
cially claimed  in  the  declaration; '  though  where  given  by  a 
statute,  it  must  be  specially  claimed." 

It  is  unusual  to  bring  debt  on  notes  not  under  seal,  except 
where  counts  on  such  notes  are  joined  with  counts  on  specialties 
or  records,  for   the  purpose  of  saving  multiplicity  of  actions. 

Where  an  instrument  provides  for  the  payment  of  interest 
— as  where  a  note,  bill  or  bond  is  for  the  payment  of  a  certain 
sum,  at  a  certain  time  after  the  date  thereof,  with  interest 
from  such  date — it  would  seem  that  the  interest  up  to  the  ma- 
turity of  the  instrument  ought  to  be  considered  a  part  of  the 
deht,  and  that  only  the  interest  which  has  accrued  after  the 
maturity  of  the  instrument  should  be  considered  as  damages. 

In  Marsh  v.  Wright,  14  111.  248,  where  the  plaintiff  declared 
in  debt,  for  work  and  labor  done,  the  court  said  :  "  As  inter- 
est was  not  specifically  claimed  in  the  declaration,  it  could 
not  be  considered  as  part  of  the  debt.  If  recoverable  at  all, 
it  was  only  as  damages  for  the  detention  of  the  debt.  Judg- 
ment should  have  been  entered  for  the  amount  of  the  indebt- 
edness established  by  the  evidence,  as  the  debt,  and  for  the 
amount  of  the  interest  due  thereon,  as  the  damages." 

In  an  action  of  debt  on  a  promissory  note,  it  was  alleged 
in  one  count  of  the  declaration  that  the  defendant,  on,  etc., 
"  by  his  promissory  note  of  that  date,  by  him  made,  for  value 
receiv^ed,  four  months  after  the  date  of  the  said  note,  promised 
the  plaintiffs  to  pay  them,  or  their  order,  without  defalcation, 
the  sum  of  four  hundred  dollars,"  etc.;  and  the  count  con- 
cluded with  a  request  and  refusal  to  pay.  The  court  held 
this  to  be  a  sufficient  count  in  debt,  the  wovd  promised  not 
being  used  by  way  of  averment  to  show  the  liability  of  the 
defendant,  but  as  descriptive  of  the  instrument.^ 

^  McConnell  v.  Thomas,  2  Scam.  ^  McGinnity     x.    Laguerenne,     5 

313.  Gilm.   101;    Cruikshnnk  v.   Brnicn, 

'  Pearsons  v.  Hamilton,  1  Scam.  5  Gilm.  75;  Smith  v.  Webb,  16  III. 
415.  105. 


438  DEBT. 

No.  236.    On  a  bill  of  exchange— Payee  against   drawer,  on  default  of 

payment. 

{Commence  as  in  last  precedent.)  For  that  whereas  the  defendant,  on, 
etc.,  m,  etc.,  made  his  bill  of  exchange,  and  delivered  the  same  to  the 

plaintiff,  and  thereby  then  and  there  requested  one  G.  H.  to  pay, 

after  the  date  thereof,  to  the  plaintiff,  or  his  order,  the  sum  of dollars, 

for  value  received,  with  interest  thereon,  etc.;  which  said  bill  the  said  G. 
H.,  on  the  day  fii^st  aforesaid,  upon  sight  thereof,  there  accepted  :  And  the 
plaintiff  avers  that  v^rhen  the  said  bill  became  due,  to  wit,  on,  etc.,  the 
same  was  there  presented  to  the  said  G.  H.  for  payment  thereof,  and  he 
was  then  and  there  requested  to  pay  the  amount  of  the  said  bill,  ac- 
cording to  the  tenor  and  effect  thereof;  but  that  the  said  G.  H.  did  not  nor 
would  then,  or  at  any  time  before  or  afterwards,  pay  the  said  amount,  or 
any  part  thereof,  but  refused  so  to  do;  of  which  premises  the  defendant  then 
and  there  had  notice  :  By  means  whereof  the  defendant  then  and  there  be- 
came liable  to  pay  to  the  plaintiff,  on  request,  the  said  amount  of  the  said 
bill;  and  being  so  liable,  the  defendant,  in  consideration  thei-eof,  then  and 
there  agi-eed  to  pay  the  said  amount  to  the  plaintiff,  on  request. 

{Add  counts  on  the  consideration  of  the  hill  hetiveen  the  plaintiff  and 
tJie  defendant,  the  money  counts,  interest,  and  account  stated — the  con- 
solidated common  counts,  as  in  the  last  precedent,  may  be  used — and  the 
following  breach:) 

Yet  the  defendant,  though  requested,  has  not  paid  to  tlip  plaintiff  the  said 
amount  of  the  said  bill  and  the  several  other  sums  of  money  above  speci- 
fied, together  amounting  to  the  sum  of dollars,  or  any  part  thereof,  but 

refuses  so  to  do;  to  the  damage  to  the  plaintiff  of dollars,  and  therefore 

he  brings  his  suit,  etc. 

See  forms  No.  58,  and  No.  60  {ante,  page  116),  and  the  ob- 
servations thereunder. 

No.  237.     On  an  award,  where  the  submission  was  by  arbitration  bonds. 

{Coynmence  as  in  No.  234,  ante.)  For  that  whereas,  certain  differences  hav- 
ing arisen  and  bemg  depending  between  the  plaintiff  and  the  defendant, 
the  plaintiff,  on,  etc.,  in,  etc.,  by  a  certain  bond  of  arbitration  bearing  date 
of  that  day,  became  bound  to  the  defendant  in  a  certain  penal  sum  in  the 
said  bond  mentioned;  and  the  defendant  then  and  there,  by  a  certain  other 
bond  of  arbitration,  bearing  date  of  the  same  day,  became  and  was  bound 
to  the  plaintiff  in  a  certain  penal  sum  in  the  same  bond  mentioned;  which 
said  bonds  were  respectively  conditioned  to  {here  set  out  the  substance  of  the 
condition,  which  may  be  thus—)  abide  the  award  and  determination  of 
E.  F.,  an  arbitrator  indifferently  electei  and  named,  as  well  by  and  on  the 
behalf  of  the  defendant  as  by  and  on  the  behalf  of  the  plaintiff,  to  arbi- 
trate and  award  concerning  all  actions,  causes  of  action,  controversies  and 
demands  whatsoever,  theretofore  had,  brought,  or  depending  by  and  be- 
tween the  said  parties,  so  as  the  said  award  should  be  made  in  writing, 
under  the  hand  of  the  said  E.  F. ,  and  ready  to  be  delivered  to  the  said  par- 


DEBT.  439 

ties  in  difference,  or  whichever  of  them  should  desire  the  same,  on  or  before, 
etc  And  the  plaintiff  further  says,  that  the  said  E.  F.,  having  taken  upon 
himself  the  burden  of  the  said  arbitration,  did  in  due  manner,  and  within 
the  time  for  that  purpose  appointed,  to  wit,  on,  etc.,  there  duly  make  and 
publish  his  award  in  writing,  by  him  subscribed,  concerning  the  said  mat- 
ters in  difference  between  the  said  parties,  ready  to  be  delivered  to  the  said 
parties  in  difference,  or  whichever  of  tliem  should  desire  the  same,  and 
did  thereby  award  that  the  defendant  should  pay  to  the  plaintiff  the  sum 

of dollars,  {set  out  tlie  award  so  far  as  relates  to  the  payment  of  the 

money,)  which,  when  paid,  should  be  in  full  satisfaction  of  all  claims  and 
demands  of  the  jilaintiff  upon  or  against  the  defendant,  for  or  in  respect  of 
the  said  matters  indifference;  and  the  said  K  F.  did  thereby  further  award 

that  the  plaintiff  should  pay dollars  as  and  for  the  costs  of  that,  his 

award,  and  that  the  defendant  should,  upon  demand,  repay  to  the  plaintiff 

one  moiety  of  such  sum  of dollars,  and  that  in  all  other  respects  the 

said  pai'ties  respectively  should  bear  their  own  costs  of  that  reference;  as 
by  the  said  award,  reference  being  thereunto  had,  will  more  fully  appear; 
of  which  said  award  the  defendant,  on  the  day  last  aforesaid,  there  had 
notice.     And  although  the  defendant  did  afterwards,  to  wit,  on,  etc.,  pay 

to  the  plaintiff  the  said  sum  of dollars  in  tlie  said  award  mentioned, 

yet  the  defendant  has  not  paid  to  the  plaintiff  the  said  sum  of  dollars 

in  the  said  award  mentioned,  or  any  part  thereof,  although  to  pay  the 
last-mentioned  sum  of  money  the  defendant  was  there  requested  by  the 
plaintiff,  to  wit,  on,  etc.,  aforesaid.     Whereby  an  action  has  accrued  to  the 

plaintiff  to  demand  of  the  defendant  the  said  sum  of dollars. 

{Add  counts  for  vioney  jiaid,  interest,  and  on  an  account  stated,  in  debt, 
as  in  No.  235,  ante,  and  common  condusion,  as  under  No.  234.) 

Where  the  submission  is  by  bond,  the  plaintiff  has  an  elec- 
tion to  sue  on  the  bond  or  on  the  award,  if  it  is  merely  for  the 
payment  of  money.  But  if  a  collateral  thing  is  awarded, 
the  suit  must  be  on  the  bond,  as  debt  will  lie  for  money 
only-' 

Where  a  sum  of  money  is  awarded,  it  is  sufficient  to  set 
forth  so  much  only  of  the  award  as  to  show  a  good  cause  of 
action.*  But  if  there  is  any  condition  precedent,  etc.,  to  be 
performed  by  the  plaintiff,  it  should  be  stated,  and  perform- 
ance, or  a  tender  and  refusal  averred. 

A  verbal  award  may  be  set  forth  substantially.*  In  setting 
forth  an  award,  it  seems  hardly  safe  to  say  that  ''  among  other 
things  "  it  was  awarded;  but  there  are  authorities  which  hold 
this  good.* 

1  2  Saund.  62,  n.  5.  «2  Vent.  242. 

2  1  Ld.  Raym.  115;  Bur.  278.  «1  Mod.  36;  01.  Free.  506. 


440  DEBT. 

In  an  action  of  debt  on  an  arbitration  bond,  it  is  only  neces- 
sary that  the  declaration  should  show  that  the  award  was 
made  in  pursuance  of  the  bond,  and  that  the  defendant  has  not 
complied  with  the  award.  The  rule  is,  however,  different 
where  the  action  is  directly  on  the  award  itself,  in  which  case 
a  mutual  submission  must  be  alleged.' 

No.  238.     Chi  a  judgment  of  the  same  court. 

{Commence  as  in  No.  234,  aute.)    For  that  whereas  the  plaintiff,  in  the 

term  of  the  said court,  in  tlie  year  18 — ,  to  wit,  on,  etc.,  in  the 

same  year,  by  the  consideration  and  judgment  of  tlie  said  court  recov- 
ered against  the  defendant,  in  a  certain  action  of ,  the  sum  of dol- 
lars, damages  (or,  "  the  sum  of dollars,  debt,  and  the  further  sum  of 

dollars,  damages  for  the  detention  thereof,"  according  to  the  record), 

and  also  the  costs  of  the  plaintiff  in  that  behalf,  taxed  at  the  sum  of 

dollars,  whereof  the  defendant  was  convicted,  as  by  tlie  record  tliereof,  re- 
maining in  the  said  court,  more  fully  appears;  which  said  judgment  still 
remains  in  full  force.  Yet  the  defendant  has  not  paid  to  the  plaintiff  the 
said  sums  of  money  so  by  him  recovered  as  aforesaid,  together  amounting 

to  the  sum  of dollars,  or  any  part  thereof,  but  refuses  so  to  do;  to  the 

damage  of  the  plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc. 

{Let  the  damages  be  enough  to  cover  tlie  interest.) 

In  an  action  on  a  judgment  for  the  defendant,  for  costs,  the  re- 
covery may  be  described  as  being  for  "  the  costs  of  the  plaint- 
iff, taxed  at  the  sum  of dollars,  by  him  expended  in  and 

about  his  defense  of  a  certain  action  of,  etc.,  then  lately  pros- 
ecuted against  him  in  the  same  court,  by  the  defendant, 
whereof,"  etc. 

Care  should  be  taken  to  set  forth  the  particulars  of  the 
judgment  correctly — the  amount,  and  the  court  and  term  in 
which  rendered,  etc.*  The  allegation  that  the  judgment 
remains  in  full  force,  though  usually  inserted,  is  not  necessary.'* 

No.  239.     On  a  judgment  of  a  court  of  another  state. 

{Commence  as  in  No.  234,  ante.)    For  that  whereas  the  plaintiff,  in  the 

term,  in  tlie  year  18 — ,  of  the court  of  the  county  of ,  in  the 

state  of ,  to  wit,  on,  etc. ,  in  the  same  year,  by  the  consideration    and 

judgment  of  the  same  court  recovered  against  the  defendant,  in  a  certain 

'  Cote  V.  Chapman,  2  Scam.  35.  Ohio  397;  see  Spangler  v.  Pngh,  21 

« 2  Chit.  PI.  483,  notes;  Com.  Dig.  111.  85. 

PI.  2  W.  12;    Bibbins  v.   Noxon,  4  » 2  Chit.  PI.  484,  n.-,    Hancock  v. 

Wend.   207;    Wolf  v.  Pounsford,  4  Proicd,  1  Saund.  330,  «.  4. 


DEBT.  441 

action  of ,  the  sum  of dollars,  damages,  (or  "  the  sum  of dol- 
lars, debt,  and  the  further  sum  of  dollars,  damages  for  the  detention 

thereof,"  according  to  the  record,)  and  also  the  costs  of  the  plaintiff  in  that 
behalf,  taxed  at  the  sum  of  dollars,  whereof  the  defendant  was  con- 
victed; as  by  the  record  thereof,  remaining  in  the  same  court,  more  fully 
appeai-s;  which  said  judgment  still  remains  in  full  force:  Yet,  etc.,  {con- 
cluding as  in  last  precedent.) 

By  the  constitution  of  the  United  States,  and  the  acts  of 
congress,  judgments  in  personam  in  the  various  states  are 
placed  on  the  same  footings  as  domestic  judgments,  and  are  to 
have  the  same  force  and  credit,  when  sought  to  be  enforced  in 
other  states,  as  they  have  by  law  or  usage  in  the  particular 
states  where  rendered/ 

The  settled  construction  of  the  constitution  and  laws  of  the 
United  States  upon  this  subject  is,  that  the  judgment  of  a  state 
court  shall  have  the  same  credit,  validity  and  effect,  in  every 
other  court  in  the  United  States  which  it  had  in  the  state 
where  pronounced;  and  that  whatever  pleas  would  be  good  to  a 
suit  thereon  in  such  state,  and  none  other,  can  be  pleaded  in 
any  other  court  in  the  United  States.^ 

The  legal  presumption,  in  the  absence  of  evidence  to  the  con- 
trary, is  in  favor  of  the  jurisdiction  of  a  court  of  record  of  an- 
other state,  which  has  assumed  to  exercise  jurisdiction  over  a 
subject-matter  in  controversy  between  parties  residing  there/ 
A  foreign  judgment  can  not  be  sued  unless  it  is  final  and  con- 
clusive in  the  countrv  or  state  where  it  was  rendered,  according; 
to  the  law  of  that  place.  It  should  be  complete  and  definite 
in  its  nature,  and  a  valid  and  subsisting  obligation,  and  it  must 
be  certain  or  capable  of  being  made  so.* 

A  judgment  which  by  the  laws  of  the  state  where  rendered 
is  conclusive  on  the  parties,  is  equally  so  when  suit  is  brought 

^  Welch  V.    Sykes,   3    Gilm.    198;  Shumicay  v.  St illman,  Q\V end.  U7; 

Bimeler  Y.   Dawson,  4:   Scam.    536;  3Iills  v.  Martin,  19  Johns.  dS;  Adams 

Kimmel  v.  Shultz,  Breese  169;  Du-  v.  Jeffries,   12    Ohio  253;  Smith  v. 

cxtmmun  v,   Hysinger,    14  111.   249;  i2/ioad«s,  1  Day  168;  i?a /rod  v.  Sar- 

Dow  V.  Blake,  148  111.  76.  retto,  IHall  (N.  Y.)  155;  McElmoyle 

''Hamjjtonv.  McConnell,SWhesit.  v.  Cohen,  13  Pet.  312;  Rosenthal  y. 

234;  Mills  v.  Diiryee,   7  Cranch  481;  Eennick,  44  111.  202. 
Laiorence  v.  Jarvis,  32  111.  304.  ■»  Dow  v.  Blake,  148  111.  76. 

^Shuviway  v.  Stillman,  4  Cow.  293; 


442  DEBT. 

thereon  in  another  state.'  An  action  of  debt  lies  upon  a  final 
decree  for  alimony  rendered  in  another  state.^ 

No.  S40.    On  a  judgment  of  a  justice  of  tlie  peace  of  another  state. 

{Commence  as  in  No.  S34,  ante.)  For  that  whereas  the  plaintiff,  on,  etc., 
before  one  F.  G.,  Esquire,  one  of  the  justices  of  the  peace,  within  and  for 

the  county  of ,  in  the  state  of ,  by  the  consideration  and  judgment 

of  the  said  justice  recovered  against  the  defendant  the  sum  of dollars, 

damages,  and  the  costs  of  the  plaintff  in  that  behalf,  taxed  at  the  sum  of 

dollars;  which  said  judgment  still  remains  in  force  :    And  the  plaintiff 

in  fact  says,  that  the  said  justice  then  and  there  had  jurisdiction  of  the 
person  of  the  defendant,  and  by  the  statute  of  that  state,  then  in  force,  then 
and  there  had  jurisdiction  of  the  subject-matter  adjudicated  in  that  behalf 
which  said  statute  is  as  follows,  that  is  to  say  :  {Here  set  out  so  much  of  tJie 
law  of  the  state  as  gives  jurisdiction.)  Yet  the  defendant  has  not  paid  to 
the  plaintiff  the  said  sums  of  money  so  by  him  recovered  as  aforesaid,  to- 
gether amomiting  to  the  sum  of  dollars,  or  any  part  thereof,  but  re- 
fuses so  to  do;  to  the  damage  of  the  plaintiff  of dollars,  and  therefore 

he  brings  his  suit,  etc.  {Counts  on  the  original  debt,  and  on  an  account 
stated,  may  be  inserted.) 

In  declaring  upon  a  justice's  judgment  of  another  state,  the 
statute  giving  jurisdiction  to  the  justice  must  be  pleaded. 
The  general  averment  of  jurisdiction  of  a  justice  of  the  peace, 
in  such  case,  is  not  enough.* 

In  order  to  entitle  a  transcript  of  a  judgment  of  a  justice  of 
the  peace  of  another  state  to  be  received  in  evidence,  it  must 
be  shown,  by  the  laws  of  the  state  where  the  judgment  was 
rendered,  that  the  justice  had  jurisdiction  of  the  subject-mat- 
ter upon  which  he  attempted  to  adjudicate.* 

No.  2^1.    Declaration  in  action  for  rent,  on  a  demise. 

{Commence  as  in  No.  S34,  ante.)  For  that  whereas  the  plaintiff,  on  etc., 
in  etc.,  demised  to  the  defendant  a  certain  parcel  of  land,  with  the  appur- 
tenances, situate,  etc.,  to  have  and  to  hold  the  same  to  the  defendant  for 
and  during  the  term  of years  then  next  ensuing,  yielding  and  paying 

^Beltony.  Fisher,  44  111.  32;  Am-  Thomas  v.   Robinson,  3  Wend.  267; 

bler\.  Whipple,  139  111.  311;  Stark  see  Cleveland  v.  Rogers,  6  Wend. 

V.  Ratcliff,  111   111.   81;  Kopperl  v.  438;  2  Cow.  &  Hill's  Notes  to  Phil. 

Nagy,  37  111.  App.  24;  Dow  v.  Blake,  Ev.  part  2. 

148  111.  76.  *  Trader  v.  McKee,  1  Scam.  558; 

^  Dow  V.  Blake,  148  111.  76.  see  elaborate  note  by  reporter  to  this 

^  Sheldon  V.  Hopkins,!  Wend,  4iZ5;  case. 


DEBT.  443 

therefor,  during  the  said  term,  to  the  plaintiff,  the  yearly  rent  of dol- 
lars, payable  quarterly,  that  is  to  say,  on,  etc.,  etc.,  by  equal  portions; 
by  virtue  of  which  said  demise,  the  defendant,  on  the  day  first  afore- 
said, entered  into  the  said  demised  property,  and  was  possessed  thereof 

from  thenceforth  until  the day  of,  etc.,  when  a  large  sum,  to-wit, 

dollars  of  the  rent  aforesaid,  for  the  space  of ,  ending  on  the  day 

last  aforesaid,  became  due  from  the  defendant  to  the  plaintiff. 

{Second  count,  for  use  and  occupation.)     And  whereas  also  tbi^ defendant 

on.,  etc.,  in,  etc.,  was  indebted  to  the  plaintiff  in  the  further  sum  of 

dollars,  for  the  use  and  occupation  of  a  certain  other  parcel  of  land  of  the 
plaintiff,  with  the  appurtenances,  by  the  defendant  held,  used  and  occupied, 
at  his  request,  and  by  the  sufferance  and  permission  of  the  plaintiff,  for  a 
long  space  of  time  before  then  elapsed;  which  last  mentioned  sum  of  money 
was  to  be  paid  by  the  defendant  to  the  plaintiff,  on  request. 

[Breach.)  Yet  the  defendant,  though  requested,  has  not  paid  to  the 
plaintiff  the  said  sums  of  money  so  due  to  him  as  aforesaid,  together  amount- 
ing to  the  sum  of dollars,  or  any  part  thereof,  but  refuses  so  to  do  to 

the  damage  of  the  plaintiff  of doUai's,  and  therefore  lie  brings  his  suit, 

etc. 

The  first  count  of  the  above  form  may  be  used,  whether  the 
demise  was  by  deed  or  by  parol.  It  is  settled  that  in  debt  for 
rent  reserved  by  deed  (except  of  incorporeal  hereditaments), 
the  plaintiff  may  declare  without  stating  the  deed.  This  is 
the  only  case  in  which  the  plaintiff  is  allowed  to  declare  gen- 
erally, and  to  produce  a  deed  in  evidence  in  support  of  such 
declaration.'  When  the  declaration  sets  out  the  lease,  it  is 
similar  to  the  declaration  in  covenant  for  rent  {ante,  No.  152), 
except  in  the  commencement  and  conclusion.^  It  is  not  neces- 
sary to  show  the  local  situation  of  the  demised  property.^ 
The  count  in  debt  for  use  and  occupation  is  sustainable,  when 
the  demise  is  not  by  deed,  or  there  was  no  covenant  sealed  by 
the  defendant/ 

No.  S42.    On  a  single  bill,  or  sealed  note. 

(Commence  as  in  No.  £34-,  ante.)  For  that  whereas  the  defendant,  on, 
etc.,  in,  etc.,  by  his  writing  obligatory,  bearing  date  of  that  day,  and  now 
to  the  court  here  shown,  bound  himself  to  pay  to  the  plaintiff, 

1  2    Chit.    PI.    430,  n;    Duppa  v.  ^  Ibid.,  3  M.  &  L.  380;  4  Taunt.  25; 

Mayor,  1  Saund.  276,  n.  1,4;  Salmon  King  v.  Frazer,  6  East  348. 

V.Smith,  Ibid.  202;  Vealev.  Warner,  *  2  Chit.    PI,  430,  n;    Wiltins  v. 

Ibid.  225,  n.  4.  Wingate,  6  T.  R.  62;  Elger  v.  Mars- 

*  2  Chit.  PI.,  430,  n.  den,  5  Taunt.  25. 


44i  DEBT. 

after  the  said  date  thereof,  the  sum  of dollars;  yet  the  defendant  has 

not  paid  to  the  plaintiff  the  said  sum  of  money,  or  any  part  thereof,  but 
refuses  so  to  do;  to  the  damage  of  the  plaintiff  of dollars,  and  there- 
fore he  brings  his  suit,  etc. 

The  common  counts  may  be  inserted,  with  the  general 
breach,  as  in  No.  235. 

Where  a  sealed  instrument  is  declared  upon,  and  described 
as  such,  or  a  word  of  art  used  which  imports  that  it  is  sealed, 
such  as  "  writing  obligatory,"  "  deed,"  or  "  indenture,"  a  de- 
livery is  never  averred;  and  the  sealing  and  delivery,  without 
an  averment  thereof,  will  be  implied.' 

An  instrument  under  seal  is  not  a  promissory  note,  though 
like  one  in  form,"  and  should  not  be  described  as  such  in  a 
pleading,  but  as  a  writing  obligatory.  A  bill  obligatory,  it  is 
said,  "  is  a  bond  without  condition,  sometimes  called  a  single 
bill,  and  differs  in  nothing  from  a  promissory  note  but  in  the 
seal  which  is  affixed  to  it."  ' 

Profert. — The  omission  of  a  profert,  when  necessary,  can 
be  taken  advantage  of  only  by  special  demurrer."  If,  how- 
ever, a  bond  or  other  deed  is  pleaded  with  a  profert  (where 
necessary),  and  the  defendant  pleads  7ion  est  factum,  and  the 
plaintiff  can  not  produce  the  deed  at  the  trial,  he  will  be  non- 
suited. It  is,  therefore,  sometimes  necessary  or  advisable  to 
insert  in  the  declaration,  or  in  one  count,  an  excuse  of  the 
profert^  as,  "and  which  said  writing  obligatory  having  been 
lost  {or  '  destroyed  by  accident,'  or  '  by  the  defendant,'  or  '  be- 
ing in  the  possession  of  the  defendant ' ),  the  plaintiff  can  not 
produce  the  same  to  the  court  here."  *  But  in  Illinois,  by 
statute,  it  is  not  necessary,  in  any  pleading,  to  make  profert  of 
any  instrument.® 

Actions  on  penal  bonds  for  the  performance  of  covenants 
— Statute. — Section  20  of  the  Illinois  Practice  Act  provides 

1  Cahdl  V.  Vaughan,  1  Saund.  291,  *  1  Chit  PI.  315;  Com.  Dig.,  tit.  PI. 
n.  1.  S.  17. 

2  2  Bouv.  Die.  392;  see  Smith  v.  «  2  Chit.  PI.  439;  Smith  v.  Wood- 
Webb.  1&  U\.  105.  tvard,   4  East  585;    2  Campb.    557; 

3  2  Bouv.  Die.  179;  Bank  v.  Grei-  Eev.  Stat.  (1893)  1073. 

ner,  2  Serg.  &  Rawle,  115.  *  Starr  &  Curtis  1786;  Rev.  Stat. 

(1895)  1157. 


DEBT.  445 

that  "  in  actions  brought  on  penal  bonds,  conditioned  for  the 
performance  of  covenants,  the  plaintiff  shall  set  out  the 
conditions  thereof,  and  may  assign  in  his  declaration  as  many 
breaches  as  he  may  think  tit;  and  the  jury,  whether  on  trial 
of  the  issue  or  of  inquiry,  shall  assess  the  damages  for  so  many 
breaches  as  the  plaintiff  shall  prove,  and  the  judgment  for  the 
penalty  shall  stand  as  a  security  for  such  other  breaches  as  may 
afterwards  happen,  and  the  plaintiff  may  at  any  time  after- 
wards sue  out  a  writ  of  inquiry,  to  assess  damages  for  the 
breach  of  any  covenant  or  covenants  contained  in  such  bond, 
subsequent  to  the  former  trial  or  inquiry;  and  whenever 
execution  shall  be  issued  on  such  judgment,  the  clerk  shall 
indorse  thereon  the  amount  of  damages  assessed  by  the  jury, 
with  the  costs  of  suit,  and  the  sheriff  or  coroner  shall  onl}'- 
collect  the  amount  so  indorsed;  iwomded,  that  in  all  cases 
where  a  writ  of  inquiry  of  damages  shall  be  issued  for  any 
such  breaches  subsequent  to  the  first  trial  or  inquiry,  the 
defendant,  or  his  agent  or  his  attorney,  shall  have  at  least  ten 
days'  notice,  in  writing,  of  the  time  of  executing  the  same." ' 
Judgment,  etc.,  in  actions  on  penal  bonds. — In  actions  of 
debt  on  penal  bonds  the  judgment  for  the  plaintiff  is  for  the 
penalty,  the  debt  in  numero  to  be  discharged  by  the  payment 
of  the  damages  assessed,  which  are  to  be  found  separately. 
The  execution  issues  for  the  debt,  with  an  indorsement  by  the 
clerk  of  the  amount  of  the  damages,  which  amount  only  the 
officer  is  to  collect.* 

No.  24s.     On  a  bond  given  on  an  appeal  to  the  supreme  court. 

(Title  of  court,  etc.)    A.  B.,  plaintiff,  by  E.  F.,  his  attorney,  complains  of 
C.  D.  and  G.  H.,  defendants,  of  a  plea  that  they  render  to  the  plaintiff 

the  sum  of  dollars  {the  penalty),  which  tiiey  owe  to  and  unjustly 

detain  from  him  :  For  that  whereas  the  defendants,  on,  etc.,  in,  etc.,  by 
tlieir  writing  obligatory,  bearing  date  of  that  day,  jointly  and  severally 
acknowledged  themselves  to  be  held  and  firmly  bound  unto  the  plaintiff  in 
the  said  sum  of doUai's,  to  be  paid  to  the  plaintiff;  which  said  writing 

•  Rev.  Stat.  (1895)  1158.  v.    Cole,    11    111.  563;     Erlinger    v. 

^  Austin  ^.  People,  \\l\\.^o2;  Mc-  People,    36    111.    458;    Freeman    v. 

Connell  v.   Swailes,   2  Scam.    571;  Peoj)le,  Mill.  15'd:  R.  R.  Co.  v.  Steele, 

Frazier  v.  Laughlin,   1   Gihn.  347;  69  111.  253;    Parisher  v.  Waldo,  73 

Hinckley  v.  West,  4  Gilm.  136;  Tales  111.  71. 


416  DEBT. 

obligatory  was  and  is  subject  to  a  certain  condition  thereunder  written, 

whereby,  after  reciting  to  the  effect  that  in  the term,  in  tlie  year  18 — , 

of  the  said  circuit  court  of  the  county  of aforesaid,  on  the day  of 

,  in  the  same  year,  by  the  consideration  and  judgment  of  that  court  the 

plaintiff  recovered  against  the  said  C.  D.,  in  a  certain  action  of ,  the  sum 

of dollars,  damages  {or  "  the  sum  of dollars,  debt,  and  the  further 

sum  of  — —  dollars  damages  for  the  detention  thereof,"  according  to  the 

bond),  and  the  costs  of  the  plaintiff  in  that  behalf,  taxed  at  the  sum  of 

dollars,  from  which  said  judgment  the  said  C.  D.  had  taken  an  appeal  to 
the  supreme  court  of  the  said  state,  it  was  provided  that  if  he,  the  said  C. 
D. ,  should  duly  prosecute  his  said  appeal,  and  should  pay  to  the  plaintiff 
the  amount  of  tlie  said  judgment,  and  all  interest  thereon,  and  all  such 
costs  and  damages  as  should  by  the  said  supreme  court  be  awarded  to  the 
plaintiff  in  case  the  said  judgment  should  be  affirmed,  or  the  said  appeal 
dismissed,  then  the  said  writing  obligatory  was  to  be  void,  otherwise  to  re- 
main in  full  force;  as  by  the  said  writing  obligatory,  and  the  said  condition 
thereof,  remaining  affiled  in  the  said  circuit  court,  will  appear.     And 

although  afterwards,  in  the term,  in  the  year  18 — ,  of  the  said  supreme 

court,  to  wit,  on  the day  of ,  in  the  same  year,  at  ,  by  the  con- 
sideration of  the  same  court  (*)  the  said  judgment  in  the  said  writing  oblig- 
atory mentioned  was  affirmed,  and  the  plaintiff  recovered  against  the  said 
C.  D.  the  costs  of  the  plaintiff  by  him  about  his  defense  of  the  said  appeal 
expended,  taxed  at  the  sum  of dollars,  whereof  the  said  C.  D.  was  con- 
victed; nevertheless  the  said  C.  D.  has  not  paid  to  the  plaintiff  the  amoimt 
of  the  said  judgment  in  the  said  writing  obligatory  mentioned,  and  the  in- 
terest thereon,  and  the  costs  last  aforesaid,  or  any  part  of  the  same :  (*) 
whereby  an  action  has  accrued  to  the  plaintiff  to  demand  of  the  defendants 
the  said  sum  of dollars  {the  penalty)  above  demanded.  Yet  the  de- 
fendants, though  requested,  have  not  paid  that  sum  of  money,  or  any  part 
thereof,  to  the  plaintiff,  but  refuse  so  to  do;  to  the  damage  of  the  plaintiff 

of dollars,  and  therefore  he  brings  his  suit,  etc.     {Lay  the  damages  at 

a  sum  s^ifficient  to  cover  the  judgment,  interest  and  costs.) 

If  the  appeal  was  dismissed,  then,  in  lieu  of  the  words  be- 
tween the  two  asterisks,  say  : 

"The  said  appeal  was  dismissed  for  want  of  prosecution,  {or  '  for  a  fail- 
ure to  file  in  the  office  of  the  clerk  of  that  court,  as  required  by  law,  an 
authenticated  copy  of  the  record  of  the  said  judgment  in  the  said  writing 
obligatory  mentioned'),  and  the  plaintiff  recovered  against  the  said  C.  D., 
as  well  the  sum  of dollars,  for  the  damages  of  the  plaintiff  in  that  be- 
half, as  his  costs  about  his  defense  of  that  appeal  expended,  taxed  at  the 

sum  of dollars,  whereof  the  said  C.  D.  was  convicted;  nevertheless  the 

said  C.  D.  has  not  paid  to  the  plaintiff  the  amount  of  the  said  judgment  in 
the  said  writing  obligatory  mentioned,  and  the  interest  thereon,  and  the 
damages  and  costs  last  aforesaid,  or  any  part  of  the  same." 

The    dismissal   of    an   appeal  or  certiorari  is  held  to  be 


DEBT.  447 

equivalent  to  an  affirmance  of  the  judgment  of  the  court  be- 
low, so  as  to  entitle  the  obligee  to  claim  a  forfeiture  of  the 
bond,  and  to  have  his  action  thereon.'  But  as  the  statute  of 
Illinois  only  gives  damages  on  the  dismissal  of  an  appeal  for 
want  of  prosecution,  or  for  a  failure  to  file  in  the  supreme 
court  a  transcript  of  the  record,'  it  would  seem  that  the 
declaration  ought  to  allege  a  dismissal,  and  an  award  of 
damages,  where  such  is  the  fact.' 

A  declaration  on  an  appeal  bond  is  sufficient  which  avers 
that  the  appeal  was  not  prosecuted,  that  the  amount  of  the 
judgment  was  not  paid,  and  that  the  judgment  was  affirmed. 
Such  declaration  need  not  aver  that  the  order  dismissing  the 
appeal  was  filed  in  the  court  below,  or  that  the  judgment  ap- 
pealed from  was  final,  or  that  the  appeal  bond  was  approved 
by  the  court.* 

An  appeal  bond  is  binding  on  the  obligors  (to  the  extent  of 
the  obligation),  though  the  condition  thereof  may  not  be  as 
broad  as  the  language  of  the  statute.'  But  where  an  appeal 
bond  contains  conditions  which  are  not  required  b}''  the  stat- 
ute such  conditions  are  not  obligatory  on  the  makers." 

The  obligors  on  an  appeal  bond  are  estopped  by  their  bond 
to  deny  the  existence  of  a  valid,  unsatisfied  judgment  at  the 
time  the  bond  Avas  executed.^ 

At  common  law,  the  conditions  of  a  bond  may  be  in  part 
valid  and  in  part  void,  if  they  are  severable;  and  the  same  rule 
applies  to  statutory  bonds,  where  the  statute  is  silent  as  to  the 
effect  of  a  departure  from  the  statutory  form.  If  the  good 
and  bad  conditions  are  incapable  of  severance,  the  bond  is 
wholly  bad.' 

•  McConnell  v.  Sioailes,  2  Scam.  '  Fournier  v.   Faggotf,   3    Scam. 

571;  Sutherland  V,  Phelps,  22111.92;  347;  Young  v.  Mason,  8  Gilm.  55. 

see  ONeil  v.  Nelson,  22  111.  App.  531;  «  Tomlin  v.  Green,  39  111.  225. 

Daggett  v.  Mensch,  141  111.  395.  ''  Smith  v,  Lozano,  1  Bradw.  171. 

^  Rev.  Stat.  (1893)  1081;  Rev.  Stat.  «  Erlinger  v.  People,  36111.  458;  U. 

(1895)  1165;  1  Starr  &  Curtis,  1836.  S.  v.  Broum,  Gilpin's  R.  178;  Vroom 

«  Daggett  v.  Mensch,  141  111.  395,  v.    Executors,   2  Green  (N.   J.)  480; 

Sutherland  V.  Phelps,  22  111.  91;  Commonw'.  v.  Pearce,  7  Mon.  317;  see 

Courson  v.  Browning,  78  lU.  208.  Uiggins  v.  Parker,  48  111.  445. 


4i8  DEBT. 

The  penalty  of  a  bond  can  only  be  claimed  by  the  obligor  in 
the  bond  or  his  legal  representatives.' 

No.  S44,     On  a  rejilevin  bend  {given  in  a  suit  in  the  same  court). 

(Title  of  court,  etc.)  A.  B.,  plaintiff,  who  sues  in  this  behalf  for  the  use 
of  C.  D.,  complains  of  E.  F.  and  G.  H.,  defendants,  of  a  plea  that  they  ren- 
der to  the  plaintiff,  for  the  use  aforesaid,  the  sum  of dollars,  which  they 

owe  to  and  unjustly  detain  from  him:  For  that  whereas  the  said  E.  F.,  on, 

etc.,  in,  etc.,  made  his  plaint  to  the  said court  of  the  county  aforesaid, 

of  the  taking  and  unjustly  detaining  of  his  goods  and  chattels  by  the  said 
C.  D.,  and  thereby  prayed  that  the  said  goods  and  chattels,  therein  de- 
scribed, might  be  forthwith  replevied  and  delivered  to  him,  the  said  E.  F.,  by 
the  sheriff  of  the  county  aforesaid;  and  the  said  E.  F.  then  and  there  made 
oath,  before  the  clerk  of  the  said  court,  that  he,  the  said  E.  F.,  was  then  the 
owner  and  lawfully  entitled  to  the  possession  of  the  said  goods  and  chattels, 
and  that  the  same  had  not  been  taken  for  any  tax,  assessment  or  fine 
levied  by  virtue  of  any  law  of  this  state,  nor  seized  under  any  execution  or 
attachment  against  the  goods  and  chattels  of  him,  the  said  E.  F. ,  liable  to 
execution  or  attachment:  And  thereupon  there  issued  then  and  there,  from 
the  said  court,  a  certain  writ  of  replevin,  directed  to  the  sheriff  of  the  said 
county,  whereby  the  people  of  the  said  State  of  Illinois  commanded  such 
sheriff  that  if  the  said  E.  F.  should  give  bond  to  such  sheriff,  with  good  and 
sufficient  security,  to  prosecute  the  suit  of  the  said  E.  F.  in  that  behalf  to 
effect,  and  without  delay,  and  to  make  return  of  the  said  goods  and  chat- 
tels, if  return  tliereof  should  be  awarded,  and  to  save  and  keep  harmless 
such  sheriff  in  replevying  the  said  goods  and  chattels,  then  such  sheriff 
should  without  delay  replevy  and  deliver  to  the  said  E.  F.  the  said  goods 
and  chattels  which  the  said  C.  D.  took  and  unjustly  detained,  as  it  was 
said,  and  that  such  sheriff  should  have  that  writ,  together  with  such  bond, 

before  the  said  court,  on  the  first  day  of  the  next term  thereof;  which 

said  writ,  on  the  day  first  aforesaid,  was  there  delivered,  for  execution 
thereof,  to  the  plaintiff,  who  then  and  fi-om  thence  until  and  at  and  after 
the  time  of  the  making  of  the  writing  obligatory  hereinafter  mentioned, 
and  the  replevying  of  the  said  goods  and  chattels  as  hereinafter  mentioned, 
was  sheriff  of  the  county  aforesaid; 

And  thereupon  the  plaintiff,  so  being  such  sheriff  as  aforesaid,  took  from 
the  said  E.  F.,  and  from  the  said  G.  H.  as  a  good  and  sufficient  surety, 
bond  in  double  the  value  of  the  said  goods  and  chattels  so  about  to  be  re- 
plevied: and  on  that  occasion  they,  the  said  E.  F.  and  G.  H. ,  then  and  there, 
by  their  writing  obligatory,  commonly  called  a  replevin  bond,  bearing  date 
of  the  day  first  aforesaid,  did  jointly  and  severally  acknowledge  themselves 
to  be  held  and  firmly  bound  unto  the  plaintiff,  so  being  such  sheriff  as  afore- 
said, in  the  simi  of dollars  above  demanded,  to  be  paid  to  the  plaintiff; 

which  said  writing  obligatory  was  and  is  subject  to  a  certain  condition 
thereunder  written,  to  the  effect  that  if  the  said  E.  F.  should  prosecute  his 

1  Sanders  v.  Filley,  12  Pick.  544;  Lovejoy  v.  Stelle,  18  111,  App.  281. 


DEBT.  449 

said  suit  to  effect,  and  without  delay,  and  should  make  return  of  the  said 
goods  and  chattels,  if  return  thereof  should  be  awarded,  and  should  save 
and  keep  harmless  the  plaintiff,  so  being  such  sheriff  as  aforesaid,  in  re- 
plevying the  said  goods  and  chattels,  then  the  said  writing  obligatory  was 
to  be  void,  otherwise  to  remain  in  full  force;  as  by  the  said  writing  oblig- 
atory and  the  said  condition  thereof,  remaining  affiled  in  the  said  court, 
will  appear:  And  thereupon  the  plaintiff,  so  being  such  sheriff  as  aforesaid, 
by  virtue  of  the  said  writ  then  and  there  replevied  and  made  deliverance 
of  the  said  goods  and  chattels  to  the  said  E.  F. ,  as  by  the  said  writ  the  plaint- 
iff was  commanded:  (*)  And  thereupon  afterwards,  in  the  said  court,  as  of 

the  said term  thereof,  in  the  year  18—,  the  said  E.  F.  declared  against 

tlie  said  C.  D.  in  the  said  plea  of  taking  and  detaining  the  said  goods  and 
chattels,  and  by  the  said  declaration  complained  that  the  said  CD.,  on, 
etc.,  aforesaid,  in,  etc.,  aforesaid,  took  the  goods  and  chattels  of  him,  the 
said  E.  F.,  in  the  said  declaration  more  particularly  described,  and  them 

unjustly  detained,  until,  etc.,  to  the  damage  of  him,  the  said  E.  F.,  of 

dollars,  etc. :  And  such  proceedings  were  thereupon  had  in  that  plea,  in  the 
said  court,  that  afterwards,  in  the  same  term,  it  was  considered  and  ad- 
judged by  the  said  court  that  the  said  E.  F,  should  take  nothing  by  his  said 
writ;  and  that  the  said  C.  D.  should  go  thereof  without  day,  and  should 
have  a  return  of  the  said  goods  and  chattels.  And  the  plaintiff  in  fact  says, 
that  the  said  E.  F.  did  not  make  a  return  of  the  said  goods  and  chattels, 
but  has  hitherto  refused,  and  still  refuses,  so  to  do;  whereby  an  action 
has  accrued  to  the  plaintiff  to  demand  of  the  defendants,  for  the  use  afore- 
said, the  said  sum  of dollars  above  demanded.     Yet  the  defendants, 

though  requested,  have  not  paid  to  the  plaintiff  tlie  said  sum  of  money 
above  demanded,  or  any  part  thereof,  but  refuse  so  to  do;  to  the  damage 

of  the  plaintiff,  for  the  use  aforesaid,  of dollars,  and  therefore,  for  the 

use  aforesaid,  he  brings  his  suit,  etc. 

If  there  was  judgment  of  non  pros,  in  the  action  of  replevin, 
then  proceed,  from  the  asterisk  in  the  above  form,  as  follows : 

And  the  plaintiff  in  fact  says,  that  the  said  E.  F.  did  not  prosecute  his 
said  suit  to  effect,  but  therein  wholly  failed;  and  thereupon  afterwards,  in 

the  said term  of  the  said  court,  it  was  considered  by  the  said  court  that 

the  said  E.  F.  should  take  nothing  by  his  said  writ,  and  that  the  said  C.  D. 
should  go  thereof  without  day,  and  should  have  a  return  of  the  said  goods 
and  chattels  :  And  the  plaintiff  further  in  fact  says,  that  the  said  E.  F.  did 
not  make  a  return  of  the  said  goods  and  chattels,  but  has  hitherto  refused 
and  still  refuses,  so  to  do;  whereby,  etc.  (as  in  tlie  above  precedent,  to  the 
end). 

The  following  is  suggested  as  a  shorter  and  probably  suffi- 
cient form  of  declaration  on  a  replevin  bond.' 

'  See  1  Swan's  Pr.  364,  b;  Morse  v,      Parker,  1  Met.  (Mass.)  508;  Wil.  Dig. 
Hodsdon,  5  Mass.  314;  Simonds  v.      tit.  Bond. 
29 


450  DEBT. 

No.  245.     Another  form  of  declaration  on  a  replevin  bond. 

(Commence  as  in  last  precedent.)  For  that  whereas  the  defendants,  on, 
etc.,  in,  etc.,  by  their  writing  obligatory,  bearing  date  of  that  day,  did 
jointly  and  severally  acknowledge  themselves  to  be  held  and  firmly  bound 
unto  the  plaintiff,  then  being  sheriff  of  the  county  aforesaid,  in  the  sum  of 
dollars  above  demanded,  to  be  paid  to  the  plaintiff;  which  said  writ- 
ing obligatory  was  and  is  subject  to  a  certain  condition  thereunder  written 
whereby,  after  reciting  to  the  effect  that  the  said  E.  F.,  on  the  day  first 

aforesaid,  sued  out  of  the  said court  of  the  county  aforesaid  a  certain 

writ  of  replevin  against  the  said  CD.,  for  the  recovery  of  certain  goods 
and  chattels  in  the  said  condition  described,  and  that  the  plaintiff,  so  be- 
ing such  sheriff,  was  about  to  execute  the  said  writ,  it  was  provided  that 
if  the  said  E.  F.  should  prosecute  his  suit  in  that  behalf  to  effect,  and  with- 
out delay,  and  should  make  return  of  the  said  goods  and  chattels,  if  return 
thereof  should  be  awarded,  and  should  save  and  keep  liarmless  the  plaintiff, 
so  being  such  sheriff  as  aforesaid,  in  replevying  the  said  goods  and  chattels, 
then  the  said  writing  obligatory  was  to  be  void,  otherwise  to  remain  in  full 
force;  as  by  the  said  writing  obligatory  and  the  said  condition  thereof,  re- 
maining affiled  in  the  said  court,  will  appear.  And  although  afterwards, 
to  wit,  on  the  day  first  aforesaid,  the  plaintiff,  so  being  such  sheriff  as 
aforesaid,  by  virtue  of  the  said  writ  there  replevied  and  made  deliverance 
of  the  said  goods  and  chattels  to  the  said  E.  F. ;    and  although  afterwards, 

in  the term  of  the  said  court,  in  the  year  18 — ,  it  was  considered  and 

adjudged  by  the  said  court  that  the  said  E.  F.  should  take  nothing  by  his 
said  writ  and  that  the  said  C.  D.  should  go  thereof  without  day,  and  should 
have  a  return  of  the  said  goods  and  chattels,  nevertheless  the  said  E.  F.  did 
not  make  a  return  of  the  said  goods  and  chattels,  or  any  pai-t  thereof,  but 
has  hitherto  refused,  and  still  refuses,  so  to  do;  whereby  an  action  has  ac- 
crued to  the  plaintiff  to  demand  of  the  defendants,  for  the  use  aforesaid, 

the  said  sum  of dollars  above  demanded.    Yet,  etc.  {concluding  as  in 

last  precedent). 

In  an  action  on  a  replevin  bond,  the  breach  need  not  be 
formally  assigned;  but  the  plaintiff  is  entitled  to  recover,  if  a 
sufficient  breach  otherwise  appears.'  An  averment  of  the 
issuing  of  a  writ  of  retorno  habendo  is  unnecessary  in  an  action 
on  a  replevin  bond.''  Such  writ  need  not  be  issued  and  returned 
before  an  action  can  be  brought  on  the  replevin  bond.  It  will 
be  sufficient  if  a  return  was  awarded  and  the  property  has  not 
been  returned.' 

^Perreau  v.  Betxin,  5  B.  &  C.  284;  ^  Peck  v.  Wilson,  22  111.  205;  Smith 
2  Chit.  PI.  462,  n.;  Hunter  v.  Sher-  v.  Pries,  21  111.  656;  Rankin  v.  Kin- 
man,  2  Scam.  539.  sey,   7   Bradw.    215;    Moorehead   v. 

*  Hunter    v.    Sherman,    2   Scam.  Yeazel,  10  Bradw.  263. 
539;  2  Chit.  PI.  462,  n. 


DEBT.  451 

It  is  sufRcient  to  allege  the  execution  and  delivery  of  the 
bond,  and  a  breach  of  its  condition,  by  a  judgment  in  the 
plaintiff's  favor  in  the  replevin  suit,  and  a  failure  to  return  the 
property.'  The  breach  need- not  be  set  out  in  broader  terms 
than  those  used  in  the  condition,  nor  need  the  proof  be  more 
extensive  than  the  breach."  The  declaration  concisely  states 
the  proceedings  in  replevin,  and  the  failure  to  fulfill  the  con- 
dition of  the  bond,  and  need  not  set  out  the  goods  replevied.* 
The  condition  of  the  bond  should  be  correctly  stated.*  When 
the  declaration  states  the  bond  in  legal  effect  it  is  unnecessary 
to  prove  its  execution  unless  the  same  is  denied  by  a  plea  veri- 
fied by  affidavit.* 

The  declaration  is  not  double,  although  both  parts  of  the 
condition  are  negatived;  and  if  a  sufficient  breach  appears,  the 
plaintiff  will  be  entitled  to  recover,  although  the  breach  is  not 
formally  assigned.®  A  breach  following  the  language  of  the 
condition,  that  the  defendant  did  not  prosecute  his  suit  with 
effect,  and  without  delay,  is  sufRcient;  and  proof  of  two  years' 
delay  would  suffice,  without  proving  a  judgment  of  non  pros  J 
Where  a  replevin  bond  was  taken  b}^  a  sheriff,  and,  his  term  of 
office  expiring,  the  Avrit  was  returned  unexecuted,  and  a  new 
writ  was  afterward  issued,  which  was  executed  by  the  successor 
without  taking  a  new  bond,  it  was  held  that  an  action  could 
be  maintained  on  the  bond  taken  by  the  former  sheriff.* 

It  is  essential  to  the  validity  of  a  replevin  bond  that  the 
name  of  the  defendant  in  the  suit  appear  therein.  Without 
this,  such  bond  is  a  nullity;  and  the  omission  can  not  be  sup- 
plied by  averment  and  proof.' 

In  an  action  on  a  replevin  bond,  the  plaintiff  is  at  liberty  to 
go  into  the  question  of  damages  for  the  detention  of  the  prop- 
erty, but  he  is  not   obliged  to  do  so.     He  may  abide  by  the 

^ Scliott  V.  Yoiiree,  142  111.  233.  ^Manning  v.  Pierce,   2   Scam.  6; 

« Peck  V.  Wilson,  23  111.  205;  Hun-  Hunter  v.  Sherman,  2  Scam.  539; 

terv.  Sherman,   2  Scam.    539;  Kel-  2  Chit.  PI.  469. 7i.;  but  see  Vinyard 

logg  V.  Boyden,  126  111.  379.  v.  Barnes,  124  111.  346. 

» 3  M.  &  S.  180;  3  Chit.  PI.  459,  n.  ">  Axford  v.  Perrett,  4  Bing.   287; 

*2  Chit.  PI.  458,  n.  2  Chit.  PI.  461,  n. 

°  Horner  v.  Boyden,  27  111.   App.  *  Petrie  v.  Fisher,  43  III.  442. 

573.  » Arter  v.  People,  54  111.  228. 


452  DEBT. 

assessment  in  the  replevin  suit,  and  take  a  verdict  in  the  pend- 
ing suit  merely  for  the  value  of  the  property.  But  if  the 
plaintiff,  in  the  action  on  the  bond,  in  fact  introduces  evidence 
as  to  the  damages  for  the  detention  of  the  property,  the  judg- 
ment in  that  case,  when  satisfied,  will  be  a  bar  to  a  scire  facias 
to  revive  a  judgment  rendered  for  damages  in  the  action  of 
replevin.'  It  is  said  that  in  an  action  on  a  replevin  bond, 
evidence  is  admissible  of  damages  sustained  by  reason  of  the 
detention  of  the  property  before  the  awarding  of  a  return.^ 

The  accidental  destruction  of  goods  wrongfully  replevied 
will  not  discharge  the  liability  of  the  plaintiff  in  the  replevin 
suit  to  make  return  of  the  property  when  so  ordered,  and  can 
not  be  set  up  in  defense  to  an  action  on  the  replevin  bond.^ 
Attorney's  fees  are  within  the  condition  of  a  replevin  bond 
providing  for  the  payment  of  all  costs  and  damages  occasioned 
by  the  wrongful  suing  out  of  the  writ." 

It  has  been  held  that  in  an  action  on  a  replevin  bond  given 
in  replevin  of  property  levied  on  under  execution,  the  plaintiff 
may  recover  the  costs  incurred  by  the  judgment  debtor  in  the 
action  in  which  the  judgment  was  recovered." 

An  instrument  in  the  form  of,  and  intended  as  a  replevin 
bond,  containing  the  recitals  of  such  bond,  with  the  statement 
that  it  was  under  the  hands  and  seals  of  the  obligors,  but  not 
in  fact  under  seal,  yet,  which  filled  the  office  of  a  replevin 
bond  and  secured  the  execution  of  the  writ,  must  be  held  as 
a  contract  of  indemnity  and  receive  the  same  construction  as 
a  statutory  replevin  bond  for  which  it  was  intended." 

See  observations  following  precedent  No.  2S0,  page  502, 
post. 

^  Shepard  V.  Butterfielcl,  4:1  111.76.  *  Siegel  v.  Hanchett.  33  111.  App. 

^  Shepard    v.    Butterfield,  41    111.  634;  Harts  v.  Wendell,  26  111.  App. 

76;  see  Stevison  v.  Earnest,  80  111.  274;  Dalby  v.  Campbell,  Id.  502. 

513;  Atkins  v.  3Ioore,   82  111.  240;  "J^arsow  v.  Loird,  36  111.  App.  402. 

Savage  v.  French,  13  Bradw.  17.  ^  Edwin  v.  Cox,  61  111.  App.  567. 

^Suppiger  v.  Gi^uaz,  137  111.  216. 


DEBT.  453 

No.  246.     On  a  sheriff's  hond — For  a  failure  by  the  sheriff  to  make  the 
amount  of  an  execution. 

In  the Circuit  Court. 

Term,  18—. 

State  of  Illinois,  ) 

County  of .     )      set.     The  People  of  the  State  of  Illinois,  plaintiff, 

which  sues  in  this  behalf  for  the  use  of  A.  B.,  complains  of  C.  D.,  E.  F., 
and  G.  H.,  defendants,  of  a  plea  that  they  render  to  the  plaintiff,  for  the 
use  aforesaid,  the  sum  of  ten  thousand  dollars,  which  they  owe  to  and  un- 
justly detain  from  the  plaintiff  :  For  that  whereas  the  defendants,  on,  etc., 
in,  etc. ,  by  their  writing  obligatory,  bearing  date  of  that  day,  jointly  and 
severally  acknowledged  themselves  to  be  held  and  firmly  bound  unto  the 
plaintiff  in  the  sum  of  ten  thousand  dollars  above  demanded,  to  be  paid  to 
the  plaintiff;  which  said  writing  obligatory  was  and  is  subject  to  a  certain 
condition  thereunder  written,  whereby,  after  reciting  to  the  effect  that  the 

said  C.  D.  had  been  duly  elected  sheriff  of  the  county  of  aforesaid,  it 

was  provided  that  if  he,  the  said  C.  D. ,  should  faithfully  discharge  all  the  du- 
ties required  or  to  be  required  of  him  by  law,  as  such  sheriff,  then  the  said 
writing  obligatory  was  to  be  void,  otherwise  to  remain  in  full  force;  as  by 
the  said  writing  obligatory  and  the  said  condition  thereof,  remaining  affiled 
in  the  office  of  the  county  clerk  of  the  county  aforesaid,  will  appear  :  And 
the  said  writing  obligatory  afterwards,  and  within  twenty  days  after  notice 

to  the  said  C.  D.  of  his  commission  as  such  sheriff,  to  wit.  on,  etc. ,  in  the 

term  of  the  said  court  in  the  same  year,  was  approved  by  the  judge  of  the 
county  court  of  said  county,  and  became  the  official  bond  of  the  said  C.  D. ,  as 
such  sheriff  as  aforesaid;  and  thereupon  he,  the  said  C.  D.,  then  and  there 
took  and  subscribed,  before  the  clerk  of  the  said  court,  the  several  oaths  re- 
quired by  law,  and  an  oath  for  the  faithful  performance  of  the  duties  of  his 
said  office  of  sheriff,  and  took  upon  himself  the  performance  of  those  duties 
and  thenceforth  has  been,  and  still  is,  sheriff  of  the  county  aforesaid.  Yet, 
the  plaintiff  in  fact  says,  that  the  said  C.  D.  has  not  faithfully  discharged 
all  the  duties  required  of  him  by  law  as  such  sheriff,  but  has  neglected  and 
refused  so  to  do,  to  the  injury  of  the  said  A.  B. 

And  for  assigning  a  breach  of  the  said  condition  of  the  said  writing  ob- 

ligatoiy,  the  plaintiff  says,  that  the  said  A.  B.,  on,  etc.,  in  the term  of 

the  said  court,  in  that  year,  by  the  consideration  and  judgment  of  the  said 

court  recovered  against  one  J.  K.  the  sum  of dollars  damages,  and  the 

costs  of  the  said  A.  B.  in  that  behalf,  whereof  the  said  J.  K.  was  convicted; 
and  for  obtaining  satisfaction  of  the  said  damages  and  costs,  the  said  A.  B. 
afterwards,  to  wit,  on,  etc.,  sued  out  of  the  said  court  a  certain  writ  of  fieri 
facias,  directed  to  the  sheriff  of  the  county  aforesaid,  whei-eby  the  said  peo- 
ple commanded  such  sheriff  that  of  the  goods  and  chattels,  lands  and  ten- 
ements, in  his  county,  of  the  said  J.  K.,  such  sheriff  should  cause  to  be 
made  the  damages  aforesaid,  and  the  sum  of dollars,  the  costs  afore- 
said, together  with  interest  thereon,  at  the  rate  of  five  per  centum  per 
annum,  from  the  time  of  recovering  the  same  as  aforesaid,  and  also  the  fur- 
ther sum  of ,  accruing  costs  on  the  said  judgment,  and  that  said  sher- 
iff should  have  those  moneys  ready  to  render  to  the  said  A.  B. ,  according 


454  DEBT. 

to  law,  and  should  make  return  of  the  said  writ  in  ninety  days  after  the 
date  thereof;  which  said  writ,  on  the  day  last  aforesaid,  was  there  delivered 
to  the  said  C.  D.,  so  being  such  sheriff  as  aforesaid,  to  be  executed.  And  al- 
though there  were  then  and  afterwards,  before  and  on  the  return  day  of  the 
said  writ,  divers  goods  and  chattels,  lands  and  tenements,  of  the  said  J.  K., 
within  the  county  aforesaid,  subject  to  execution,  out  of  which  the  said  C. 
D.  might  and  ought  to  have  caused  to  be  made  the  said  moneys,  as  by  the 
said  writ  he  was  commanded,  whereof  he  then  and  there  had  notice;  yet 
the  said  C.  D.,  not  regarding  the  duties  of  liis  said  office,  did  not  nor  would, 
before  or  on  the  return  day  of  the  said  writ,  cause  to  be  made  those  mon- 
eys, or  any  part  thereof,  but  wholly  neglected  so  to  do,  nor  did  nor  would 
he  make  return  of  the  said  writ,  as  he  was  therein  commanded  (although 
the  return  day  thereof  has  long  since  elapsed),  but  has  hitherto  neglected, 
and  still  neglects,  so  to  do.  By  means  of  which  premises  the  said  A.  B.  has 
been  and  is  deprived  of  the  means  of  obtaining  the  said  moneys  so  com- 
manded to  be  levied  as  aforesaid,  and  which  are  still  wholly  unpaid;  and 
thereby  an  action  has  accrued  to  the  plaintiff  to  demand  of  the  defendants, 
for  the  use  aforesaid,  the  said  sum  of  ten  thousand  dollars  above  demanded. 
Yet  the  defendants,  though  requested,  have  not  paid  that  sum,  or  any  part 
thereof,  to  the  plaintiff,  but  refuse  so  to  do;  to  the  damage  of  the  plaintiff, 

for  the  use  aforesaid,  of dollars,  and  therefore  the  plaintiff,  for  the  use 

aforesaid,  brings  suit,  etc. 

If  the  execution  has  been  returned  "  no  property,"  then,  in 
lieu  of  the  allegation  that  the  sheriff  did  not  return  the  writ, 
the  pleader  may  insert : 

"And  on,  etc.,  falsely  and  deceitfully  returned  to  the  said  court,  upon 
the  said  writ,  to  the  effect  that  in  his  county  the  said  J.  K.  had  no  goods 
or  chattels,  lands  or  tenements,  whereof  he,  the  said  C.  D.,  could  cause 
to  be  made  those  moneys,  or  any  part  of  the  same." 

If  the  sheriff  has  made  the  amount  of  the  execution,  but 
neglected  to  pay  it  over,  and  has  falsely  returned  "  no  prop- 
erty," then  after  alleging  the  delivery  of  the  writ,  the  pleader 
may  aver  as  follows : 

"  By  virtue  of  which  said  writ  the  said  C.  D.,  as  such  sheriff  as  aforesaid, 
afterwards,  to  wit,  on,  etc.,  thei-e  caused  to  be  made  the  said  moneys  so  by 
the  said  writ  commanded  to  be  levied  as  aforesaid;  yet  the  said  C.  D.,  not 
regarding  his  duty  as  such  sheriff,  had  not  those  moneys,  or  any  part 
thereof,  ready  to  render  to  the  said  A.  B.,  at  the  return  of  the  said  writ, 
according  to  the  exigency  thereof,  but  therein  wholly  failed,  nor  has  the 
said  C.  D.  paid  those  moneys,  or  any  part  thereof,  to  the  said  A.  B.;  and  on, 
etc.,  the  said  C.  D.  falsely  and  deceitfully  returned,"  etc. 


DEBT.  455 

In  an  action  (on  the  case)  against  a  slieriff,  for  failing  to  make 
the  amount  of  an  execution,  the  declaration  contained  two 
counts,  the  first  averring  in  substance  that  the  sheriff  took 
certain  personal  property  in  execution,  but  did  not  make  the 
money  out  of  the  same,  and  "  wrongfully,  falsely  and  deceit- 
fully "  returned  upon  the  writ  that  the  suit  having  been  ap- 
pealed, as  per  bond  and  the  order  of  the  court  thereto  annexed, 
the  writ  was  returned  in  no  part  satisfied;  and  the  second 
count  averring  in  substance  that  the  defendant  in  execution 
had  personal  property  which  the  sheriff  might  have  taken, 
whereof  he  had  notice,  but  that  he  neglected  and  refused  so  to 
do,  and  "  wrongf ull}'-,  falsely  and  deceitfully  "  returned  the 
writ  as  alleged  in  the  first  count.  The  court  said,  that  the 
gist  of  this  action  was  that  the  sheriff  neglected  his  duty  in 
failing  to  seize  property,  or,  having  seized  property,  in  failing 
to  sell  it  and  make  the  money;  and  that  the  matter  of  the  re- 
turn was  not  essential/ 

It  is  perhaps  unnecessary  to  allege  the  taking  of  the  oath 
by  the  sheriff.^  In  an  action  on  an  appeal  bond,  it  is  held,  the 
approval  of  the  bond  need  not  be  averred.^ 

The  fact  that  the  official  bond  of  a  constable  was  not  given 
until  some  nineteen  months  after  his  election  will  not  affect 
the  validity  of  the  bond.  It  will  be  presumed,  from  the  mere 
fact  of  its  execution,  that  such  bond  was  given,  under  the 
statute,  because  the  sureties  in  a  former  bond  were  insufficient; 
and  in  declaring  on  a  bond  so  given,  it  is  not  necessary  to  set 
out  the  order  of  the  proper  authority  requiring  the  same.* 

If  an  officer,  in  whose  hands  an  execution  is  placed,  so  delays 
making  a  proper  seizure  of  property,  without  the  consent  of 
the  creditor,  that  the  rights  of  other  parties  intervene,  the 
creditor  has  his  remedy  against  the  officer.^  In  an  action 
against  a  sheriff  for  failing  to  make  the  money  on  an  execu- 
tion, the  damages  are  not  necessarily  the  amount  of  the  execu- 
tion, but  only  such  damages  as  the  plaintiff  actually  suffers  by 
the  sheriff's  neglect.' 

^BeveridgcY.  Wagner,  48  I\l.  525.  *McElhanon  v.  Co.  Court,  54  111. 

5 1  Swan's  Prac.  368,  h.  163. 

^ Sutlierland  v.  Phelps,  23  111.  92.  'Davidson  v.  Waldro7i,  31  111.  120. 

'Freiich  v.  Snyder,  30  111.  339. 


456  DEBT. 

Where  a  sheriff  accepts  an  assignment  of  a  chattel  mortgage 
as  collateral  security  for  the  payment  of  a  judgment,  upon 
which  he  has  an  execution  in  his  hands,  the  plaintiff  in  execu- 
tion, being  ignorant  of  the  assignment,  is  not  bound  by  the 
action  of  the  sheriff.  The  latter  can  only  accept  money  in 
satisfaction  of  an  execution.' 

An  officer  having  an  execution  must  use  due  diligence  to 
make  the  amount  thereof  out  of  the  property  of  the  defendant 
in  his  county."  In  determining  the  amount  of  property  neces- 
sary to  be  taken  to  satisfy  an  execution,  the  officer  should 
make  an  allowance  for  the  sacrifice  usually  incident  to  forced 
sales.  And  in  an  action  against  a  sheriff  for  failing  to  collect 
the  amount  of  an  execution,  it  is  no  defense  that  the  sheriff 
had  reasonable  grounds  to  believe,  and  did  believe,  that  he  had 
seized  sufficient  property.  He  must  be  able  to  show  that  he 
used  such  diligence  as  prudent  men  use  in  the  management  of 
their  own  business.  And  while  he  ought  to  take  property 
enough,  at  the  same  time  he  should  not  make  a  seizure  so  ex- 
cessive as  to  bear  on  its  face  the  appearance  of  oppression  and 
unnecessary  rigor.' 

An  officer  who  should  refuse  to  proceed  upon  a  second  execu- 
tion, where  the  first  had  been  stayed  by  an  agreement  between 
the  parties  to  it,  would  be  liable  for  a  false  return.*  A  failure 
by  a  sheriff  to  return  an  execution  within  the  time  prescribed 
by  law  is  a  breach  of  his  bond." 

A  fee-bill  is  "  process,"  and  has  the  effect  of  an  execution;  ® 
and  if  an  officer  neglects  to  return  such  process  within  ninety 
days  from  its  date,  he  becomes  liable  to  pay  the  amount  of  the 
same.'    The  right  of  action  of  a  judgment  creditor  against  a 

J  Dibble  v.  Briggs,  28  111.  48.  *  Hargrave  v.  Penrod,  Breese  401; 

"^Dunlap  V.    Berry,  4  Scam.  831;  Rossx.  W^e&er,  26  111.  221 :  Moore  v. 

Hargrave  y.  Penrod,  Breese  401;  Da-  Fitz,   15  Ind.  43;  see  Davidson  v. 

vidson  V.  Waldron,  31  111.  120;  Bev-  Waldron,  31  111.  120. 

eridge  v.  Wagner,  48  111.  525.  ^People  v.  Johnson,   15  111.  App. 

^French  v.  Snyder.   80   111.    339;  153. 

3Iitchell    V.    Commonw.,    37  Penn.  ^  Reddick  v.  Cloud,  2   Gilm.  670; 

State  R.  187;  Sheldon  v.  Paine,   10  Ferris  v.  Crow,  5  Gilm.  96;  Newkirk 

N.  Y.  (6  Seklen)  398:  Taylor  v.  Com-  v.  Chapron,  17  111.  344. 

mouMJ.  3  Bibb  359;  Wickliffe  \ .  Sand-  ''People  v.   Nichols,  4  Scam.  560; 

era,  7  B.  Mon.  298;  Lawson  v.  State,  Shij^pen  v.  Curry,  3  Met.  (Ky.)  184; 

5  Eng.  (Ark.)  28.  Crow  v.    State,  24  Texas,  12. 


DEBT.  457 

sheriff  for  not  levying  a  fi.  fa.  is  not  taken  away  by  a  dis- 
charge of  the  debtor  by  the  creditor  from  a  ca.  sa.  issued 
at  his  instance  (although  such  a  discharge  might  be  a  satis- 
faction of  the  judgment),  where  the  creditor's  right  of  action 
against  the  sheriff  was  perfect  before  such  discharge.'  It  has 
been  held  that  the  levy  of  an  execution  against  one  upon  the 
property  of  another,  is  a  breach  of  a  sheriff's  bond.'  On  the 
subject  of  the  liability  of  sheriffs,  see  the  additional  Illinois 
cases  noted  below.* 

No.  SJi.7.     On  a  guardian's  bond — For  the  use  of  the  ward,  after  coming 

of  age. 

(Commence  as  in  last  precedent.)    For  that  whereas  in  the term,  in  the 

year  18 — ,  of  the  county  court  of  the  county  aforesaid,  to  wit,  on,  etc.,  in 
that  year,  the  said  A.  B.,  then  a  minor  above  the  age  of  fourteen  years, 
personally  appeared  before  that  court,  and  made  choice  of  the  said  C.  D.  as 
his  guardian;  and  thereupon  the  said  C.  D.  was  by  the  same  court  tlien  and 
there  approved  and  appointed  as  guardian  of  the  person  and  estate  of  the 
said  A.  B. ;  and  the  same  court  then  and  there  took  and  approved  a  bond  of 
the  said  C.  D.,  with  the  said  E.  F.  and  G.  H.  as  two  sufficient  sureties,  in 
double  the  amount  of  the  personal  estate  of  the  said  A.  B. ,  and  six  timesi 
the  amount  of  the  gross  annual  income  of  his  real  estate,  according 
to  the  form  of  the  statute,  etc.:  And  on  that  occasion  they,  the  said 
C.  D.,  E.  F.  and  G.  H.,  defendants,  then  ami  there,  by  their  writing  oblig- 
atory, bearing  date  of  that  day,  jointly  and  severally  acknowledged  them-. 

selves  to  be  held  and  firmly  bound  unto  the  plaintiff  in   the  sum  of 

dollars  above  demanded,  to  be  paid  to  the  plaintiff;  which  said  writing 
obligatoiy  was  and  is  subject  to  a  certain  condition  thereunder  written,  to 
the  effect  that  if  the  said  C.  D.  should  faithfully  discharge  the  office  and 
tiTist  of  such  guardian  of  the  said  A.  B.,  according  to  law,  and  should  make 
a  true  inventory  of  all  the  real  and  personal  estate  of  the  said  A.  B.  that 
should  come  to  the  possession  or  knowledge  of  the  said  C.  D.,  and  return 
the  same  unto  the  said  county  court,  at  the  time  required  by  law,  and  should 
manage  and  dispose  of  all  such  estate  according  to  law  and  for  the  best  in- 
terest of  the  said  A.  B.,  and  should  faithfully  discharge  his,  tliesaid  C.  D.'s 

'  Hargrave  v.  Penrod,  Breese  401.  50  111.  195;  People  v.   Foster,  133  III. 

"^  Jones  V.  People,  19  111.  App.  301;  521:  Klemm  v.  Bishop,  56  111.  App. 

Hilly.  Reitz,  24  111.  App.  391.  613;  Bressler  v.  Beach,  21  III.  App. 

» People    V.  Nichols,  4  Scam.  560;  422;    Bank    v.  Hanchett,    126     111. 

People  V.  McKatton,  2  Gilm.   731;  Am-,  People  v.  Hanchett,  111  111.93; 

Buckmaster  v.  Drake,   5  Gilm.  321;  Boyden  v.  Frank,   20  111.  App.  169; 

Day  V.  Hackney,  20  111.  133;  People  McGillis  v.  Bishop.  27  111.  App.  53; 

V.  Wardlaw,  24    111.    570;  People  v.  Comer  v.  Huston.  55  111.  App.   153; 

Palmer,  46  111.  398;  Smart  v.  Carson,  Green  v.  People,  14  Bradw.  304. 


458  DEBT. 

trust  in  relation  thereto  and  to  the  custody,  nurture  and  education  of  the 
said  A.  B. ,  and  should  render  an  account  on  oath  of  the  property  in  the 
hands  of  him,  the  saidC.  D.,  including  the  proceeds  of  all  real  estate  that 
might  be  sold  by  him,  if  any,  and  of  the  management  and  disposition  of  all 
such  estate,  within  one  year  after  his  said  appointment,  and  at  such  other 
time  as  should  be  required  by  law  or  directed  by  the  court,  and  upon  his 
removal  from  office,  or  at  the  expiration  of  his  said  trust,  should  settle  his 
accounts  in  that  court,  or  with  the  said  A.  B.  or  his  legal  representatives, 
and  pay  over  and  deliver  all  the  estate,  title  papers  and  effects  remaining 
in  his,  the  said  C.  D.'s,  hands,  or  due  from  him  on  such  settlement,  to  the 
person  or  persons  lawfully  entitled  thereto,  then  the  said  writing  obligatory 
should  be  void,  and  otherwise  should  remain  in  full  force  and  virtue;  as  by 
the  said  writing  obligatory  and  the  said  condition  thereof,  I'emaining  affiled 
in  the  said  county  court,  will  appear:  (*)  And  thereupon  the  said  C.  D. 
then  and  there  took  upon  himself  the  said  office  and  trust  of  guardian  of 

the  said  A.  B. ,  and  thenceforth  was  such  guardian  until  the day  of, 

etc.,  when  the  said  A.  B.  attained  his  age  of  twenty-one  years.  Yet  the 
plaintiff  in  fact  says  that  the  said  C.  D.  did  not  faithfully  discharge  the 
said  office  and  trust  of  guardian  of  the  said  A.  B.  according  to  law,  but 
neglected  and  refused  so  to  do,  to  the  injury  of  the  said  A.  B.  And  for 
assigning  a  breach  of  the  said  condition  of  the  said  writing  obligatory,  the 
plaintiff  says,  that  after  the  said  appointment  of  the  said  C.  D.  as  such  guard- 
ian and  the  making  of  the  said  writing  obligatory,  as  aforesaid,  and  before 
the  day  last  mentioned,  divers  rents  accruing  from  the  real  estate  of  the  said 

A.  B.,  amounting  to  a  large  sum  of  money,  to  wit, dollars,  came  to  the 

hands  of  the  said  C.  D.  as  such  guardian;  yet  the  said  C.  D.,  not  regarding 
his  duty  as  sucli  guardian,  during  that  time  there  converted  and  disposed 
of  the  said  rents  to  his  own  use,  and  has  neglected  and  refused,  and  still 
neglects  and  refuses  to  pay  over  to  the  said  A.  B.  the  amount  of  the  said 
rents,  or  any  part  thereof,  although  he,  the  said  A.  B.,  on  tlie  day  last  afore- 
said, was  there  lawfully  entitled  thereto,  and  the  said  C.  D.  was  then  and 
there  requested  to  pay  over  the  same  to  him,  the  said  A.  B.  And  for  assign- 
ing a  further  breach  of  the  said  condition  of  the  said  writing  obligatory, 
the  plaintiff  says,  that  (here  set  out  any  other  act  or  omission  constituting  a 
breach  of  the  condition  of  the  bond.)  By  means  of  which  premises  an  action 
has  accrued  to  the  plaintiff  to  demand  of  the  defendants,  for  tlie  use  afore- 
said, the  said  sum  of dollars  above  demanded :    Yet  the  defendants, 

tliough  requested,  have  not  paid  to  the  plaintiff  that  sum  of  money,  or  any 
part  thereof,  but  refuse  so  to  do;  to  the  damage  of  the  plaintiff,  for  the  use 

aforesaid,  of dollars,  and  therefore,  for  the  use  aforesaid,  the  plaintiff 

brings  suit,  etc. 

It  is  sugfjested  that  the  declaration  might  be  somewhat 
more  concisely  framed,  as  follows  : 

For  that  whereas  the  defendants,  on,  etc.,  in,  etc..  by  their  writing  ob- 
ligatory, bearing  date  of  that  day,  jointly  and  severally  acknowledged 
themselves  to  be  held  and  firmly  bound  unto  the  plaintiff  in  the  sum  of 


DEBT.  459 

dollars  above  demanded,  to  be  paid  to  the  plaintiff;  which  said  writing 

obligatory  was  and  is  subject  to  a  certain  condition  thereunder  written,  to 
the  effect  that  if  the  said  C.  D.,  who  had  been  appointed  guardian  of  the 
said  A.  B.,  should  faithfully  discharge  the  office  and  trust,  etc.  {setting 
Old  the  condition,  as  in  tlie  above  precedent);  as  by  the  said  writing  obliga- 
tory and  the  said  condition  thereof,  remaining  affiled  in  the  same  court, 
will  appear.  And  although  the  said  C.  D.  then  and  there  took  ujion  himself 
the  said  office  and  trust  of  guardian  of  the  said  A.  B.,  as  in  the  said  condi- 
tion mentioned,  and  thenceforth  was  such  guardian  until  the day  of, 

etc. ,  when  the  said  A.  B.  became  of  full  age,  nevertheless  the  plaintiff  in 
fact  says,  that  the  said  C.  D.  did  not  faithfully  discharge  his  said  office  and 
trust,  etc.     {Proceeding  as  in  the  above  precedent.) 

An  allegation  in  a  declaration  on  a  guardian's  bond  of  a  set- 
tlement of  the  guardian's  accounts  in  the  probate  court,  and  a 
failure,  neglect  and  refusal  to  pay  over  to  the  ward  the  amount 
found  to  be  due  b}'-  that  court,  is  a  sufficient  assignment  of  a 
breach  of  the  condition  that  the  guardian  shall  faithfully  dis- 
charge the  office  and  trust  imposed  upon  him  according  to 
laiv;  and  the  breach  of  that  condition  furnishes  as  ample  a  basis 
for  a  recovery  as  would  a  breach  of  any  of  the  other  conditions 
of  the  bond.' 

No.  2JtS.     On  a  guardian's  bond— For  tJie'use  of  the  successor  of  a  guardian 
who  has  been  removed. 

{Title  of  court,  etc.,  as  in  No.  S34,  ante.)  The  People  of  the  State  of  Illi- 
nois, plaintiff,  which  sues  in  this  behalf  for  the  use  of  J.  K. ,  complains  of 
C.  D.,  E.  F.  and  G.  H.,  defendants,  of  a  plea  that  they  render  to  the  plaint- 
iff, for  the  use  aforesaid,  the  sum  of  dollars,  which  they  owe  to  and 

unjustly  detain  from  the  plaintiff.     For  that  whereas  in  the term,  in 

the  year  18 — ,  of  the  county  court  of  the  county  aforesaid,  to  wit,  on,  etc., 
in  that  year,  one  A.  B.  {proceed  as  in  No.  2JfI,  to  the  asteHsk) :  And  there- 
upon the  said  C.  D.  then  and  there  took  upon  himself  the  said  office  and 
trust  of  guardian  of  the  said  A.  B.,  and  thenceforth  was  such  guardian 

until  the day  of,  etc.,  when  he,  the  said  C.  D.,  was  by  the  same  court 

removed  from  his  said  office  and  trust,  and  the  said  J.  K.  was  duly  appointed 
and  qualified,  and  thenceforth  has  been,  and  still  is,  guardian  of  the  person 
and  estate  of  the  said  A.  B.  And  the  plaintiff  in  fact  says,  that  the  said  C.  D, 
did  not  faithfully  discharge  the  said  office  and  trust  of  guardian  of  tlie  said 
A.  B. ,  according  to  law,  but  neglected  and  refused  so  to  do,  to  the  injury 
of  the  said  J.  K.  And  for  assigning  a  breach  of  the  said  condition  of  the 
said  writing  obligatory,  the  plaintiff  says,  that  {here  set  out  any  jmrticular 
actor  omission  constituting  a  breach).  And  for  assigning  a  further  breach 
of  the  said  condition  of  the  said  writing  obligatory,  the  plaintiff  says,  that 

*  People  V.  Seelye,  146  111.  189. 


4G0  DEBT. 

{here  set  out  any  other  breach).  By  reason  of  which  said  breaches  the  said 
writinej  obligatory  became  forfeited,  and  thereby  an  action  has  accrued, 
etc.  {concluding  as  in  No.  247). 

In  the  case  of  Bond  v.  Lookivood,  33  111.  212  (1864),  the 
court  says  that  the  statute  in  relation  to  guardians  does  not 
constitute  a  complete  code,  but  confers  upon  the  county  court 
power  to  appoint  guardians,  and  to  regulate  their  conduct  in 
accordance  with  their  duties  at  common  law.  Many  of  the 
powers  and  duties,  rights  and  liabilities  of  guardians  are  not 
specifically  defined  by  the  statute.  It  contains  such  provisions 
as  were  necessary  to  define  the  nature  of  the  jurisdiction  con- 
ferred, prescribe  the  manner  of  its  exercise,  and  correct  some 
of  the  defects  of  the  law  as  it  then  existed.  In  other  respects 
the  common  law  is  left  in  force. 

See  the  same  case  for  a  discussion  of  the  powers,  rights,  du- 
ties and  liabilities  of  guardians. 

If  a  guardian  buys  land  with  the  ward's  money,  the  ward 
may  elect  to  take  the  land,  or  consider  it  as  a  security  for  the 
money.* 

Where  a  guardian  converts  the  money  of  his  ward  to  his 
own  use,  suit  may  be  at  once  instituted  on  the  bond.  It  is  not 
necessary  to  a  recovery  that  a  devastavit  shall  have  previously 
been  established  against  him.^ 

It  is  held  that  if  a  guardian  converts  money  of  his  ward  to 
his  own  use,  he  is  chargeable  with  compound  interest.*  In 
Illinois,  by  statute,  a  guardian  is  chargeable  with  interest  upon 
any  money  which  he  Avrongfully  or  negligently  allows  to  re- 
main in  his  hands  uninvested  after  the  same  might  have  been 
invested,* 

Guardianship  of  a  female  ward  determines  on  her  marriage; 

1  Edmonds  v.  Morrison,  5  Dana  Am.  Lead.  Cas.,  362;  Bond  v.  Lock- 
223;  Davies  v.  Loiorey,  15  Ohio  655.       imod,  33  111.  212;  In  re  Steele,  65  111. 

2  Rev.  Stat.  (1893)  1005;  Rev.  Stat.       322. 

(1895)    1073;  2  Starr  &  Curtis   1687;  *  Rev.  Stat.  (1895),  841;  Rev.  Stat, 

'  Bonhamv.  People,  102  111.  434;  Gil-  (1893),  792;  1    Starr  &  Curtis   1243; 

lett  V,  Wiley,  126  111.  319;  Mclntire  see   Bennett  v,  Hanifan,  87  111,  31; 

V.  People,  103  111.  142.  Winsloio  v.   PeojJle,    117    111.    152; 

^  Roimnv;  Kirkpatrich,  14  111.  1;  Kaftelman  v,    Guthrie,  142  III.  857; 

Jennison  v.   Hapgood,   10  Pick.  78;  Rawson  v.  Corbett,  150  111,  466, 
Moore  v,  Beauchup,   5  Dana  77;  1 


DEBT. 


461 


otherwise  of  males.'  By  the  statute  of  Illinois,  the  marriage 
of  a  female  ward  discharges  her  guardian  from  all  right  to 
her  custody  and  education,  but  not  to  her  property,- 

See  the  statute  of  Illinois  concerning  guardians  and  wards 
and  the  additional  cases  noted  below/ 


No.  249.     On  an  administrator's  bond, 

{Commence  as  in  No.  246,  ante.)    For  that  whereas  in  the term,  in  the 

year  18—,  of  the  county  court  of  the  county  aforesaid,  to  wit,  on,  etc.,  in 
that  year,  the  said  C.  D.  was  by  the  same  coiu-t  appointed  administrator  of 
the  estate  of  one  J.  K..  deceased,  and  was  then  and  there  duly  quahfied  as 
such  administrator;  and  the  said  C.  D.  then  and  there  entered  into  bond, 
with  the  said  E.  F.  and  G.  H.  as  two  sufficient  sureties,  in  dout)le  the  value 
of  the  said  estate,  according  to  the  form  of  the  statute,  etc. :  And  on  that 
occasion  the  defendants  then  and  there,  by  their  writing  obligatory,  bear- 
ing date  of  that  day,  jointly  and  severally  acknowledged  themselves  to  be 
held  and  firmly  bound  unto  the  plaintiff  in  the  penal  sum  of ,  current 


'  1  Vea.  Sen.  159,  n. 

2  Rev.  Stat.  (1895),  843;  Rev.  Stat, 
(1893),  794;  1  Starr  &  Curtis  1248. 

3  Starr  &  Curtis  1336;  Rev.  Stat, 
(1895).  839;  Mason  v.  Wait,  4  Scam, 
127;  Davis  v,  Harkness,  1  Gilm.  173; 
Cowls  V.  Cowls,  3  Gilm.  435;  Mason 
v.  Caldwell,  5  Gilm.  196;  Young  v. 
Lorain,  11  111.  625;  Young  v.  Keough, 
11  111.  642;  Holmes  v.  Field,  12  111, 
424;  Cochran  v,  McDowell,  15  111,  10; 
Clark  V.  Burnside,  15  111,  62;  King 
V.  King,  15  111,  187;  Ayers  v.  Baum- 
garten,  15  111.  444;  Yoking  v,  Dowl- 
ing,  15  111.  481;  Penn  v.  Heisey,  19 
111,  295;  In  re  Guernsey,  21  111.  443; 
Lloyd  Y.  Malone,  2Sm.  43;  Smith  v. 
Race,  27  111.  387;  Fitzqibhonv.  Lake, 
29111.  165;  Cummins  \.  Cummins,  2^ 
111,  452;  Gilbert  V.  Guptill,  34 lU,  112 
Merritt  v.  Simpson,  41  111,  391 
Campbell  v,  Harmon,  43  111,  18 
Midford  v.  Stalzenback,  46  111,  303 
Clark  V.  Thomj)son,  47  111.  25;  Mor- 
timer V.  People,  49  111.  473;  Attridge 
V.  Billings,  57  111,  489;  McElheny  v. 
Musick,  63  111.  328;  Morgan  v.  John- 
son, 68  111.  190;  Meyers  v,  Temme, 
72  111.  574;  Mulford  v.  Beveridge,  78 


111.  455;  Sperry  v.  Fanning,   80  111. 
371;  Bruce    v.  Doolittle,  81   111,  103; 
Peojile  V,  Harrison.  82  111.  84;  Har- 
vey V.  Harvey,  87  111.  54;  Railsback 
V.  Williamson,  88   111.   494;    Bell^^. 
Peo2)le.  94  111,  230;  Fogarty  v.  Ream, 
100  111,  366;    Hughes  v.  People,  111 
111.  460;  Lloyd  v,  Kirkivood,  112  111, 
338;    Bailey  v.  Bailey,    115  111.  553; 
Millard  v,  Harris.  119  111.  190;  Car- 
ter V.    Tice.   120  111,   281:    Yates  v. 
Dodge,  123  111,  52;  Inre  Corrington, 
124  111,  363;  Nichels  v,  Sargent,  125 
111.  311;    Hayes  v,  7ns,  Co.,  125  111, 
262;  Roodhouse    v,    Roodhouse,   132 
111.  363;  Kingsberry  v.    Powers,  131 
111,191;   Kingsberry  y.  Hutton,  140 
111.  603;  Ames   v,  Ames,  148  111,  321 
Hughes  v.    People,    10  Bradw,  148 
Henning   v,    Eldridge,   14  III,    191 
Wright  v,  Comley,    14  Bradw,  551 
Means    v.    Earles,    15  Bradw.   273 
Seago  v.   People,   21   111,   App.  283 
People  v.  Borders,   31   111.  App,  431 
Cond.  V.   Churchman,  32  111,  App 
318;  Steyer  v,  Morris,   39  111.  App 
387;  Zander  v.   Feeley,  47  111.  App 
659. 


462  DEBT. 

money  of  the  United  States,  to  be  paid  to  the  plaintiff;  which  said  writing 
obhgatory  was  and  is  subject  to  a  certain  condition  thereunder  written,  to 
the  effect  that  if  the  said  C.  D.,  administrator  of  all  and  singular  the  goods 
and  chattels,  rights  and  credits  of  the  said  J.  K.,  deceased,  should  make  or 
cause  to  be  made  a  true  and  perfect  inventory  of  all  and  singular  the  goods 
and  chattels,  rights  and  credits  of  the  said  deceased  which  should  come  to 
the  hands,  possession  or  knowledge  of  him,  the  said  C.  D.,  as  such  adminis- 
trator, or  to  the  hands  of  any  person  or  persons  for  him,  and  the  same  so 
made  should  exhibit  or  cause  to  be  exhibited  in  the  said  county  court,  agree- 
ably to  law,  and  such  goods  and  chattels,  rights  and  credits  should  well 
and  truly  administer  according  to  law.  and  all  the  rest  of  the  said  goods 
and  chattels,  rights  and  credits  which  should  be  found  remaining  upon  the 
account  of  the  said  administrator,  the  same  being  first  examined  and 
allowed  by  the  court,  should  deliver  and  pay  unto  such  person  or  persons 
respectively  as  might  be  legally  entitled  thereto,  and  further  should  make 
a  just  and  true  account  of  all  his  actings  and  doings  therein  when  there- 
unto required  by  the  same  court,  and  if  it  should  appear  that  anj'  last  will 
and  testament  was  made  by  the  said  deceased,  and  the  same  should  be 
proved  in  court,  and  letters  testamentary  or  of  administration  be  obtained 
thereon,  the  said  C.  D.  in  such  case,  on  being  required  thereto,  should  ren- 
der and  deliver  up  the  letters  of  administration  granted  to  him  as  aforesaid, 
and  should,  in  general,  do  and  perform  all  other  acts  which  might  at  any 
time  be  required  of  him  by  law,  then  the  said  obligation  was  to  be  void, 
and  otherwise  to  remain  in  full  force  and  virtue;  as  by  the  said  writing 
obligatory  and  the  said  condition  thereof,  remainmg  affiled  in  the  same 
court,  will  appear. 

And  thereupon  the  said  C.  D,  then  and  there  took  upon  himself  the  ad- 
ministration of  the  said  estate,  and  thenceforth  has  been,  and  still  is,  such 
administrator  as  aforesaid.  Yet  the  plaintiff  in  fact  says,  that  the  said  C. 
D.  has  not  faithfully  discharged  the  duties  of  his  said  office  of  adminis- 
trator, according  to  the  said  condition  of  the  said  writing  obligatory,  but 
has  neglected  and  refused  so  to  do,  to  the  injury  of  the  said  A.  B.  And  for 
assigning  a  breach  of  the  said  condition,  the  plaintiff  says  that  heretofore, 

in  the term,  in  the  year  18 — ,  of  the  said  county  court,  to  wit,  on,  etc., 

in  that  year,  by  the  consideration  of  the  same  court  the  said  A.  B.  recov- 
ered agamst  the  said  estate  of  the  said  J.  K.,  deceased,  the  sum  of dol- 
lars, to  be  paid  in  due  course  of  administration,  as  a  debt  of  the class; 

(*)  and  although  at  and  since  that  time  divers  moneys  and  effects  belonging 
to  the  said  estate  were  and  have  been  in  the  hands  of  the  said  C.  D.  as  such 
administrator,  out  of  which  moneys  and  effects  the  amount  of  the  said 
judgment  might  and  ought  to  have  been  paid  to  the  said  A.  B.,  yet  the  said 
C.  D.  has  not  paid  the  same,  or  any  part  thereof,  to  the  said  A.  B.,  but  has 
wasted  the  said  moneys  and  effects,  and  converted  and  disposed  of  the  same  to 
his,  the  said  C.  D.'s,  own  use.  And  for  assigning  a  further  breach  of  the  said 
condition  of  the  said  writing  obligatory,  the  plaintiff  says,  that  {here  set  out 
any  other  matter  constituting  a  breach,  as  that  the  administrator  did  not 
make  and  exhibit  an  inventory,  etc.)  By  means  of  which  premises  the  said 
writing  obligatory  has  become  forfeited,  and  thereby  an  action  has  accrued, 
etc.  (concluding  as  in  No.  S47,  ante). 


DEBT.  463 

The  matters  of  inducement  might  perhaps  be  omitted,  and 
the  declaration  proceed  directly  to  a  statement  of  the  bond 
and  condition,  as  suggested  under  form  Ko.  247,  ante;  after 
which  the  declaration   might   proceed : 

"And,  although  the  said  C.  D.  thereupon  then  and  there  took  upon  him- 
self the  administration  of  the  said  estate,  as  in  the  said  condition  men- 
tioned, and  thenceforth  has  been,  and  still  is,  such  administrator  as  afore- 
said, nevertheless  the  plaintiff  in  fact  says,  that  the  said  C.  D.  has  not 
faithfully  discharged  his  duties  as  such  administrator,  according  to  the  said 
condition,  but  has  neglected  and  refused  so  to  do,  to  the  injury,"  etc. 

Section  115  of  the  statute  provides  that  "if  any  executor 
or  administrator  shall  fail  or  refuse  to  pay  over  any  moneys  or 
dividend  to  any  person  entitled  thereto,  in  pursuance  of  the 
order  of  the  county  court,  lawfully  made,  within  thirty  days 
after  demand  made  for  such  moneys  or  dividend,  the  court, 
upon  application,  may  attach  such  delinquent  executor  or  ad- 
ministrator; *  *  *  and  moreover,  such  failure  or  refusal 
on  the  part  of  such  executor  or  administrator  shall  be  deemed 
and  taken  in  law  to  amount  to  a^<?ya6toy«7,  and  an  action  upon 
such  executor's  or  administrator's  bond  and  against  his  securi- 
ties, may  be  forthwith  instituted  and  maintained,  and  the 
failure  aforesaid  to  pay  such  moneys  or  dividend  shall  be  a 
sufficient  breach  to  authorize  a  recovery  thereon."  < 

In  a  proceeding  under  sec.  115,  chap.  3,  R.  S.,  entitled 
"  Administration,"  against  a  defaulting  executor  or  adminis- 
trator, it  is  necessary  to  aver  and  prove  a  demand.  It  is  not 
necessary,  however,  to  do  so  Avhen  proceeding  under  section  39 
of  that  chapter.^ 

It  has  been  held  that  an  action  will  lie  upon  an  administra- 
tor's bond  for  a  devastavit,  by  a  creditor  who  has  obtained  a 
judgment  against  the  administrator  in  a  court  of  competent 
jurisdiction,  notwithstanding  the  claim  was  never  presented  to 
the  probate  court.* 

It  is  not  essential  to  a  right  of  recovery  that  a  devmtavit 
shall  have  first  been   established  against   the   administrator. 

'  1  Starr  &  Curtis,  244;    Rev.  Stat.  "^  Nevitt  v.  Woodbnrn.  5G  111.  App. 

(1893).   128;    Rev.    Stat.   (1895),  128;      346. 
People \:  Stacy,  11  Bradw.  506.  ^People  v.  Allen,  8  Bradw.  17. 


464:  DEBT. 

Since  the  case  of  Briggs  v.  Postlewaite,  Breese  198,  a  statute 
has  been  passed  which  dispenses  with  proof  of  a  devastavit, 
in  all  actions  on  bonds  of  executors  and  administrators.'  A 
devastavit  may  be  alleged  in  the  following  manner — proceed- 
ing thus  from  the  asterisk  in  the  above  form : 

And  the  said  judgment  still  remaining  wholly  unsatisfied,  the  said  A. 

B.  afterward  impleaded  the  said  C.  D.  in  the  said court,  to  the 

term  thereof,  in  the  same  year,  and  declared  against  him  in  a  plea  of  debt, 
alleging  the  said  judgment;  and  in  and  by  his  declaration  in  that  behalf 
the  said  A.  B.  averred,  that  at  the  time  of  the  recovery  aforesaid  divers 
goods,  chattels  and  moneys  which  were  of  the  said  J.  K. ,  at  the  time  of  his 
death,  of  great  value,  to  wit,  of  the  value  of  the  sum  of  money  so  recov- 
ered as  aforesaid,  had  come  to  the  hands  of  the  said  C.  D.,  as  administrator 
as  aforesaid,  to  be  administered,  which  said  goods,  chattels  and  moneys  the 
said  C.  D.  afterward,  to  wit,  on,  etc.,  there  eloigned,  wasted,  and  disposed 
of  and  converted  to  his  own  use,  etc. ;  and  such  proceedings  were  thereupon 
had  in  that  plea,  that  in  the  same  term,  to  wit,  on  etc.,  by  the  considera- 
tion of  the  same  court  the  said  A.  B.  recovered  against  the  said  C.  D.  as 

well  the  said  sum  of dollars,  the  debt  in  that  plea  demanded,  as  the 

further  sum  of dollars,  damages  for  the  detaining  of  that  debt,  and  the 

costs  of  the  said  A.  B.  in  that  behalf,  taxed  at  the  sum  of dollars;  and 

the  same  debt,  damages  and  costs  still  remain  wholly  unpaid  to  Mm,  tlie 
said  A.  B.     By  means  of  which  premises,  etc. 

A  failure  to  collect  debts  which  might  be  collected  is  waste 
by  an  administrator,  and  he  is  chargeable  with  the  loss.^  An 
averment  that  the  administrator  has  not  complied  with  an 
order  of  the  county  court  directing  the  payment  of  a  claim 
against  the  estate,  is  a  sufficient  averment  that  the  money  or- 
dered to  be  paid  had  not,  in  fact,  been  paid  to  the  party  enti- 
tled to  the  same.' 

In  an  action  upon  an  administrator's  bond,  at  the  instance 
of  a  creditor,  a  right  of  recovery  exists,  prima  facie,  if  it  ap- 
pears that  the  person  for  whose  use  the  suit  is  brought  holds 
a  claim  against  the  estate,  and  that  the  administrator  has  been 
guilty  of  a  devastavit  to  the  extent  of  such  claim.  It  is  not 
essential  to  such  right  of  recovery  that  the  creditor  should 
prove  there  were  no  assets  to  which  he  could  resort  for  the 
satisfaction  of  his  claim.     Even  if  it  should  appear  that  there 

<  Rev.  Stat.  (1893),  1005;  Rev.  Stat.         "Am.   &  Eng.   Enc.  Law,   vol.  7, 
(1895),  1073;  2  Starr  &  Curtis,  1687;      page  347,  and  cases  there  cited. 
Tucker  v.  People,  87  ni.  76.  »  Tuclcer  v.  People,  87  111.  76. 


DEBT.  465 

"were  assets  sufficient  to  satisfy  the  creditor,  the  right  of  re- 
covery on  the  bond  would  perhaps  not  thereby  be  defeated. 
(54  111.  263.)  This  case  was  decided  before  the  passage  of  the 
act  of  1872,  above  mentioned. 

Creditors,  heirs  and  distributees  only,  and  not  an  adminis- 
trator de  bonis  non,  can  charge  a  former  administrator  with  a 
devastavit} 

In  Ralston  V.Wood,  15  111.  159,  the  court  says  that  a  suit 
upon  an  administrator's  bond,  for  a  failure  by  the  administra- 
tor to  pay  over  money  adjudged  by  a  probate  court  to  be  paid, 
is  a  collateral  action,  founded  as  well  upon  that  judgment  as 
upon  the  bond;  and  in  such  action  the  judgment  can  not  be 
inquired  into  by  those  affected  by  it — neither  by  the  adminis- 
trator nor  his  sureties — except  for  fraud.^ 

For  a  breach  of  the  condition  of  the  bond  of  an  executor  or 
administrator,  an  action  may,  in  Illinois,  be  maintained  against 
any  one  or  more  of  the  obligors; '  and  the  bond  may  be  de- 
scribed as  the  bond  of  those  of  the  obligors  who  are  sued, 
without  noticing  the  others." 

The  statute  in  that  regard  is  as  follows  :  "  All  bonds  which 
may  at  any  time  be  given  by  any  executor  or  administrator, 
either  with  or  without  the  will  annexed,  or  de  bonis  non,  to 
collect,  or  public  administrator,  may  be  put  in  suit  and  prose- 
cuted against  all  or  any  one  or  more  of  the  obligors  named 
therein,  in  the  name  of  the  people  of  the  State  of  Illinois,  for 
the  use  of  any  person  who  may  have  been  injured  by  reason  of 
the  neglect  or  improper  conduct  of  any  such  executor  or  ad- 
ministrator, and  such  bonds  shall  not  become  void  on  the  first 
recovery  thereon,  but  may  be  sued  upon,  from  time  to  time, 
until  the  whole  penalty  shall  be  recovered  :  Provided,  that  the 
person  for  whose  use  the  same  is  prosecuted  shall  be  liable  for 
all  costs  which  may  accrue  in  the  prosecution  of  the  same  in 

^Rowan  v.  Kirkpatrick,  14  111.  8;  179;  Brooks  v.  People,  15  111.  App. 

Newhall  v.  Turney,  U  111.  338;  Short  570;  Rutter  v.  Hall,  31  111.  App.  647; 

V.  Johnson,  25  111.  489;  Stose  v.  Peo-  People  v.  Stacy,  11  Bradw.  506. 

pie,  25  111.  600;  see  Dwight  v.  New-  *  Peojjle  v.  Miller,  1  Scam.  83;  Peo- 

ell,  15  111.  333;  DuJJUn  v.  Abbott,   i8  pie  v.  Lott,  27  111.  215. 

111.  17.  ♦  Curry  v.  People,  54  111.  263;  Cum- 

*  See  also  Hou^h  v.  People,  66  111.  mings  v.  People,  50  111.  133. 
80 


466  DEBT. 

case  the  plaintiffs  fail  in  their  suit;  and  certified  copies  of  all 
such  bonds,  under  the  seal  of  the  clerk  of  the  county  court, 
shall  be  received  as  evidence  to  authorize  such  recovery  in  any 
court  of  law  or  equity  of  competent  jurisdiction."  ' 

The  adjudged  cases  in  Illinois,  relating  to  executors  and  ad- 
ministrators, are  very  numerous,  almost  every  volume  of  the 
reports  containing  one  or  more  cases  of  this  kind. 

No.  250.     On  an  attachment  bond  {given  in  a  suit  in  the  same  court). 

(Title  of  court,  etc.,  as  in  No.  234,  ante.)  A.  B.,  plaintiflE,  by  L.  M.,  his 
attorney,  complains  of  C.  D.,  E.  F.  and  G.  H.,  defendants,  of  a  plea  that 

they  render  to  the  said  A.  B.  the  sum  of dollars,  which  they  owe  to 

and  unjustly  detain  from  him  :    For  that  whereas  the  said  C.  D. ,  on,  etc. , 

in,  etc.,  prayed  a  writ  of  attachment  out  of  the  said court  of  the  said 

county,  against  the  estate  of  the  said  A.  B. ;  and  on  that  occasion  the  said 
C.  D.,  E.  F.  and  G.  H.  then  and  there,  by  their  writing  obligatory,  bearing 
date  of  that  day,  did  jointly  and  severally  acknowledge  themselves  to  be 

held  and  firmly  bound  unto  the  said  A.  B.  in  the  sura  of dollars,  to  be 

paid  to  him,  the  said  A.  B. ;  which  said  writing  obligatory  was  and  is  subject 
to  a  certain  condition  thereunder  written,  whereby,  after  reciting  to  the 
effect  that  the  said  C.  D.  had  on  the  day  aforesaid  prayed  an  attachment 
out  of  the  said  court,  at  the  suit  of  himself,  against  the  estate  of  the  said 

A.  B.,  for  the  sum  of dollars,  which  attachment  was  then  about  to  be 

sued  out  of  the  said  court,  returnable  on  the day  of tlien  next,  to 

the  term  of  the  said  court  then  to  be  holden,  it  was  provided  that  if  the  said 
C.  D.  should  prosecute  his  said  suit  with  effect,  or  in  case  of  failure  therein 
should  well  and  truly  pay  and  satisfy  the  said  A.  B.  all  such  costs  in  the 
said  suit,  and  such  damages  as  should  be  awarded  against  the  said  C.  D., 
his  heirs,  executors  or  administrators,  in  any  suit  or  suits  which  might 
thereafter  be  brought  for  wrongfully  suing  out  the  said  attachment,  then 
the  said  writing  obligatory  was  to  be  void,  otherwise  to  remain  in  full  force 
and  effect;  as  by  the  said  writing  obligatory  and  the  said  condition  thereof, 
remaining  affiled  in  the  said  court,  will  appear  : 

And  thereupon,  on  the  day  first  aforesaid,  there  issued  from  the  said 
court  the  writ  of  attachment  aforesaid,  returnable  as  in  the  said  condition 
mentioned,  by  which  said  writ  the  people  of  the  said  State  of  Illinois  com- 
manded the  sheriff  of  the  said  county  that  he  should  attach  so  much  of  the 
estate,  real  or  personal,  of  the  said  A.  B.,  to  be  found  in  the  said  county,  as 
should  be  of  value  sufficient  to  satisfy  the  said  debt  and  the  costs,  accord- 
ing to  the  complaint  in  that  behalf,  and  such  estate  so  attached  in  his,  the 
said  sheriff's,  hands  to  secure,  or  so  to  provide  that  the  same  inight  be  liable 
to  further  proceedings  thereupon,  according  to  law,  etc. :    And  thereupon 

1  Rev.  Stat.  (1895)  113;  Rev.  Stat.      People    v.  Lott,   27  111.  215;  People 
(1893)  113;    1  Starr    &  Curtis  203;      v.  Summers,  16  111.  173. 
People  V.  Randolph,  24  111.  325;  see 


DEBT.  467 

the  said  sheriff,  to  whom  the  said  writ  was  then  and  there  delivered  for 
execution,  by  virtue  of  the  said  writ  then  and  there  attached  and  took 

divers  goods  and  chattels  of  the  said  A.  B.,  of  the  value  of dollars. 

And  the  said  A.  B.  in  fact  saj^s,  that  the  said  C'.  D.  did  not  prosecute  his 
said  suit  with  effect,  but  that  such  proceedings  were  thereupon  had  in  that 

suit  that  afterwards,  in  the  said term  of  the  said  court,   to  wit, 

on,  etc. ,  it  was  considered  by  the  said  court  that  the  said  writ  should  be 
quashed,  and  that  the  said  A.  B.  should  recover  his  costs  in  that  behalf 
against  the  said  C.  D. ;  which  said  costs  were  and  are  taxed  in  the  said 

court  at  the  sum  of dollars,  and  still  remain  unpaid  to  him,  the  said  A. 

B.  And  the  said  A.  B.  further  in  fact  says,  that  by  reason  of  the  wrongful 
suing  out  of  the  said  writ  he  was  there  obliged  to  and  did  expend  divers 

sums  of  money,  amounting  to dollai's,  in  and  about  his  defense  of  that 

suit,  and  has  thereby  sustained  damage  to  that  amount;  yet  the  said  C.  D. 
(although  he  was  on  the  day  last  aforesaid  there  requested  by  the  said  A. 
B.  so  to  do)  has  not  paid  to  him,  the  said  A.  B. ,  the  last  mentioned  sum  of 
money,  or  any  part  of  the  same.  By  means  of  which  premises  an  action 
has  accrued  to  the  said  A.  B.  to  demand  of  the  said  C.  D.,  E.  F.  and  G.  H. 

the  said  sum  of dollars  above  demanded  :    Yet  though  requested,  they 

have  not  paid  to  the  said  A.  B.  that  sum  of  money,  or  any  part  thereof,  but 
refuse  so  to  do;  to  the  damage  of  the  said  A.  B.  of dollars,  and  there- 
fore he  brings  his  suit,  etc. 

From  the  wording  of  the  condition  of  the  bond  prescribed 
by  the  5th  section  of  the  Illinois  attachment  act,  and  from 
the  4th  section  of  the  same  act,  it  Avould  seem  that  the  obli- 
gors would  only  be  liable  for  such  damages  as  might  be 
awarded  against  the  principal  in  any  suit  which  might  after- 
ward be  brought  against  him  for  wrongfully  suing  out  the 
writ — that  is,  if  the  defendant  in  the  attachment  suit  should, 
in  an  action  brought  by  him,  recover  damages  against  the 
principal  for  wrongfully  suing  out  the  attachment,  and  the 
latter  should  not  pay  such  damages,  then  the  obligors  would  be 
liable  on  their  bond.  But  in  the  case  of  ChurcJiill  v.  Abraham^ 
22  111.  455,  the  court  says:  "  It  has  never  been  held  that  the 
obligee  could  not  recover  the  amount  of  the  damages  actually 
sustained  by  the  wrongful  suing  out  of  the  attachment,  until 
he  has  brought  an  action  for  maliciously  suing  out  the  writ, 
and  recovered  a  judgment  for  the  damages  sustained.  Our 
statute  intends  to  afford  a  remedy  to  the  defendant  in  attach- 
ment, if  the  attachment  is  not  sustained,  although  it  may  have 
been  sued  out  in  good  faith,  and  upon  probable  cause.  If  the 
party  could  only  sue  upon  the  bond  after  he  had  recovered  a 


468  DEBT. 

judgment  for  a  malicious  attachment,  he  might  sustain  the 
most  serious  loss  by  the  wrongful  act  of  the  plaintiff  even 
when  it  was  not  malicious.  The  plaintiff  in  attachment  can 
not  excuse  himself  because  he  acted  in  good  faith.  If  he  oc- 
casions damages  by  an  attachment  which  he  can  not  sustain, 
he  and  his  sureties  should  and  must  be  responsible  for  those 
damages.  Although  the  wording  of  the  bond,  as  prescribed 
by  the  statute,  does  not  express  the  liability  in  language  as 
clear  as  might  have  been  selected,  its  meaning  has  been  long 
and  well  settled  in  this  state,  and  we  should  not,  were  the 
lano-uasre  even  more  doubtful,  feel  at  liberty  to  disturb  it."  ' 

Although  the  goods  may  have  been  sold  under  an  execution 
after  they  were  seized  under  the  attachment,  that  does  not 
alter  the  measure  of  the  liability  arising  by  reason  of  the 
wronofful  suinff  out  of  the  attachment.* 

A  proceeding  in  attachment  was  held  invalid  by  reason  of 
the  insufficiency  of  the  bond,  which  described  no  court  from 
which  the  writ  issued,  nor  any  court  or  term  to  which  it  was 
to  be  returned;  and  the  court  said  the  bond  was  so  wholly  un- 
certain that  it  might  well  be  doubted  whether  an  action  could 
ever  be  maintained  on  it,  in  case  of  a  breach  of  its  condition.' 
In  another  case,  where  the  only  mention  of  the  court,  in  the 
bond,  was  in  the  condition,  wherein  the  writ  was  described  as 
"  returnable  on  the  2d  day  of  November  next,  to  the  term  of 
the  court  then  to  be  holclen,"  the  bond  was  held  sufficient,  as 
it  complied  with  the  form  given  by  the  statute  then  in  force.* 

Where  the  condition  of  an  attachment  bond  recited  that  A. 
and  B.  had  prayed  an  attachment  at  the  suit  of  C,  to  their 
use,  and  provided  that  if  A.  and  B.  should  prosecute  their  suit, 
etc. — following  the  form  given  in  the  5th  section  of  the  Illi- 
nois attachment  act — the  bond  was  held  sufficient,  although 
the  4th  section  of  the  act  requires  the  bond  to  be  "  conditioned 
for  satisfying  all  costs  which  may  be  awarded  to  such  defend- 
ant, or  to  any  others  interested  in  said  proceedings^ ' 

'See  Hibhard  v,   McKindley,   28  ^Laicrence  v.   Yeatman,  2  Scam. 

111.  240;  Bliss  v.  Heasty,  61  111.  338;  15, 

Packer  V.  Phillips,  33  111.  App.  120.  *  Singleton  v.    Wofford,  3  Scam. 

^Churchill    v.    Abraham,   22   111.  576. 

455.  ^  Love  v.   Fairfield,  5  Gilm.   303; 


DEBT.  469 

It  has  been  held  that  the  measure  of  damages  to  be  recovered 
on  an  attachment  bond  is  the  actual  expenses  and  loss  result- 
ing from  the  attachment,  including  fees  for  professional  serv- 
ices rendered  in  relation  to  the  attachment.' 

No.  251.    On  an  injunction  bond  (given  in  a  suit  in  tJie  same  court). 

(Commence  as  in  the  last  precedent.)  For  that  whereas  on,  etc.,  the  said 
C.  D.  exhibited  in  the  said  circuit  court  of  the  county  aforesaid,  on  the 
chancery  side  thereof,  his  bill  of  complaint  against  the  said  A.  B.,  and 
thereby  prayed,  amongst  other  things,  that  the  said  A.  B.  might  be  enjoined 
from  doing  certain  acts  in  the  said  bill  mentioned;  and  upon  examination 
hereof,  the  judge  of  the  said  court  then  and  there  ordered  that  a  writ  of 
injunction  should  issue,  according  to  the  prayer  of  the  said  bill,  upon  the 
said  C.  D.'s  giving  bond,  conditioned  according  to  law,  (or  "  as  required  by 
the  said  order,")  with  the  said  E.  F,  and  G.  H.  as  sureties  :  And  thereupon, 
in  pursuance  of  the  said  order,  the  said  C.  D.  gave  bond,  with  the  said  E. 
F.  and  G.  H.  as  sureties  therein  as  aforesaid:  and  on  that  occasion  they,  the 
said  C.  D.,  E.  F.  and  G.  H.,  by  their  writing  obligatory,  bearing  date  of 
that  day,  jointly   and  severally  acknowledged   themselves  to  be  held  and 

firmly  bound  unto  the  said  A.  B.  in  the  sum  of dollars  above  demanded, 

to  be  paid  to  him,  the  said  A.  B.,  upon  the  condition,  nevertheless,  that  if 
the  said  C.  D.  should  well  and  truly  pay  to  the  said  A.  B.  all  such  costs  and 
damages  as  should  be  awarded  against  him,  the  said  C.  D.,  in  case  the  said 
injunction  should  be  dissolved,  then  the  said  writing  obligatory  was  to  be 
void,  and  otherwise  to  remain  in  full  force;  as  by  the  said  \vriting  obliga- 
tory, remaining  affiled  in  the  said  court,  will  more  fully  appear.  (*)  And 
thereupon  there  issued  then  and  there,  from  the  said  court,  a  writ  of  in- 
junction in  that  behalf,  whereby  the  people  of  the  State  of  Illinois  com- 
manded and  strictly  enjoined  the  said  A.  B.  that  he  should  absolutely  desist 
and  refrain  from  doing  the  acts  therein  and  in  the  said  bill  mentioned,  until 
the  further  order  of  the  said  court  in  the  premises;  which  said  writ  was 
then  and  there  directed  and  delivered  to  the  sheriff  of  the  county  aforesaid 
to  be  executed,  and  to  be  by  him  returned  into  the  said  court  at  the  then 
next  term  thereof,  in  due  form  of  law  :  And  thereupon  the  said  sheriff,  on 
the  day  first  aforesaid,  there  duly  served  the  said  writ  on  the  said  A.  B.,  by 
delivering  to  him  a  true  copy  of  the  same.  And  the  said  A.  B.  in  fact  says, 
that  such  proceedings  were  tliereupon  had  in  that  cause  that  afterwards  in 

the term  of  the  said   court,  in  the  year  18 — ,  to  wit,  on,  etc.,  in  that 

year,  it  was  adjudged  and  decreed  by  the  said  court  that  the  said  injunction 
should  be  dissolved,  and  that  the  said  C.  D.  should  pay  to  the  said  A.  B.  his 
costs  in  that  behalf,  which  said  costs   were  and  are  taxed  in  the  said  court 

at  the  sura  of dollars,  and  should  pay  to  him,  the  said  A.  B.,  the  sum  of 

dollare,  which  by  the  said  court  was  then  and  there  adjudged  to  him 

for  his  damages  bj'  him  in  that  behalf  sustained:    Nevertheless  the  said  C. 

Rev.     Stat.    (1893)   169;    Rev.    Stat.  '  Damron  v.  Sioeetser,  16  111.  App. 

(1895)  173;  1  Starr  &  Curtis,  311-312.       344. 


470  DEBT. 

D.  has  not  paid  to  the  said  A.  B.  the  costs  and  damages  aforesaid,  or  any 
part  thereof,  but  the  same  remain  wholly  unpaid.  Whereby  an  action  has 
accrued  to  the  said  A.  B.  to  demand  of  the  said  C.  D.,  E.  F.  and  G.  H.  the 

said  sum  of dollars  above  demanded  :    Yet  they  have  not  paid  to  the 

said  A.  B.  that  sum  of  money,  or  any  part  thereof,  but  refuse  so  to  do;   to 

the  damage  of  the  said  A.  B.  of  dollars,  and  therefore  he  brings  his 

suit,  etc. 

Section  12  of  the  injunction  act,  provides  that  "  in  all  cases 
where  an  injunction  is  dissolved  by  any  court  of  chancery  in 
this  state,  the  court,  after  dissolving  such  injunction,  and  be- 
fore finally  disposing  of  the  suit,  upon  the  party  claiming  dam- 
ages by  reason  of  such  injunction  suggesting  in  writing  the 
nature  and  amount  thereof,  shall  hear  evidence,  and  assess  such 
damages  as  the  nature  of  the  case  may  require,  and  to  equity 
appertain,  to  the  party  damnified  by  such  injunction,  and  may 
award  execution  to  collect  the  same,  jf;wwc?efZ,  a  failure  so  to 
assess  damages  shall  not  operate  as  a  bar  to  an  action  upon  the 
injunction  bond."  ' 

Damages  may  be  assessed  either  on  the  dissolution  of  the 
injunction,  or  in  a  suit  on  the  bond.^  And  a  failure  to  assess 
damao-es  on  the  dissolution  is  no  bar  to  an  action  on  the  in- 
junction  bond  therefor.' 

A  recovery  in  an  action  on  the  bond  is  an  award  of  damages 
within  the  usual  conditions  of  such  bonds.  And  it  is  not 
necessary  that  a  separate  recovery  should  be  had  against  the 
complainant  before  the  liability  attaches  against  the  securi- 
ties. When  a  judgment  is  recovered  against  him  and  the  other 
oblio-ors,  the  condition  is  answered,  as  the  damages  are  then 
awarded  against  him.* 

The  act  of  1861  was  the  same  as  the  above  section  with  the 

•  1  Starr  &  Curtis  1285;  Rev.  Stat.  111.  210;  Wing  v.  Dodge,  80  111,  564; 

(1895)  859;    Rev.    Stat.    (1893)  810;  Siiving   v.    Collector,    78    111.     101; 

Hibbard  v.  3IcKindley,  28  111.   240;  Marsh  v.  Morton,  75  111.  621. 

Brown  v.  Gordon,  31  111.  416;  Misner  '  Bardill  v.  Trustees,  4  Bradw.  94; 

V.    Bnllard,   43    111.   470;    Buck   v.  Rees  v.  Peltzer,  1  Bradw.  315. 

Beekhj,  45  111.  100;  Sturges  v.  Hart,  ^  Linington  v.  Strong,   8  Bradw. 

45  111.  103;  Hartwell  v.  Black,  48  111.  384. 

301;  Shaffer  w.  Sutton,  49  111.  506;  *  Hibbard  v.    McKindley,   28   111. 

Smith  \.  Powell,  50  111.21;    Collins  240;  Brown  \.  Gorton,   31    111.    416; 

V.  Sinclair,  51  111.  328;  Fahs  v.  Rob-  Sturges  v.  Hart,  45  111.  103. 
er/s,  54  111.  192;  Forth  v.  Xmia,  54 


DEBT.  471 

exception  of  the  proviso.  In  the  revision  of  1874,  that  act  was 
amended  by  adding,  '^Provided,  a  failure  to  assess  damages 
shall  not  operate  as  a  bar  to  an  action  upon  the  injunction 
bond."  Under  the  act  of  1861,  it  was  held  that  unless  the  ob- 
ligees had  their  damages  assessed  upon  the  dissolution  they 
could  not  have  them  assessed  in  a  suit  on  the  bond.' 

If  the  damages  were  not  assessed  on  dissolution,  the  declara- 
tion may  proceed,  from  the  asterisk  in  the  above  form,  in  this 
manner : 

And  thereupon  there  issued  then  and  there,  from  the  said  court,  a  writ  of 
injunction  in  that  behalf,  whereby  the  people  of  the  said  State  of  Illinois  com- 
manded and  strictly  enjoined  the  said  A.  B.  that  he  should  absolutely  desist 
and  refrain  from  removing,  selling,  or  in  any  manner  disposing  of  or  inter- 
fering with  a  certain  stock  of  dry  goods  and  groceries  then  in  a  certain 

store  house  then  occupied  by  the  said  A.  B.,  in  the  town  of ,  in  the 

county  aforesaid,  uiitil  the  further  order  of  the  said  court  in  the  premises; 
which  said  writ  was  then  and  there  directed  and  delivered  to  the  sheriff  of 
the  county  aforesaid  to  be  executed,  and  to  be  by  him  returned  into  the 
said  court,  at  the  then  next  term  thereof,  in  due  form  of  law.  And  there- 
upon the  said  sheriff,  on  the  day  first  aforesaid,  there  duly  served  the  said 
writ  on  the  said  A.  B.,  by  delivering  to  him  a  true  copy  of  the  same.  And 
the  said  A.  B,  in  fact  says,  that  such  proceedings  were  thereupon  had  in 

that  cause  that  afterwards,  in  the  term  of  the  said  court,  in  the  year 

18 — ,  to  wit,  on,  etc..  in  that  year,  it  was  adjudged  and  decreed  by  the  said 
court  that  the  said  injunction  should  be  dissolved,  and  that  the  said  C.  D. 
should  pay  to  the  said  A.  B.  his  costs  in  that  behalf;  which  said  costs  were 

and  are  taxed  in  the  said  court  at  the  sum  of dollars,  and  still  remain 

wholly  unpaid  to  the  said  A.  B.  And  the  said  A.  B.  further  in  fact  says, 
that  by  reason  of  the  said  injunction  he  was,  during  all  the  time  the  same 
remained  in  force  as  aforesaid,  there  prevented  from  merchandising  and 
making  profit  of  the  said  stock  of  dry  goods  and  groceries  (whereof  he 
was  then  the  owner,  and  which  was,  at  the  time  of  the  issuing  of  the  said 

writ,  of  the  value  of dollars),  and  from  carrying  on  his   business  of  a 

merchant,  and  thereby  he,  the  said  A.  B.,  there  lost  and  was  deprived  of 
great  gains  and  profits  which  he  otherwise  would  have  made,  amounting  to 
tlie  sum  of dollars;  and  also,  during  the  time  the  said  injunction  re- 
mained in  force  as  aforesaid,  the  said  A.  B.  was  there  compelled  to  and  did 

pay  out  and  expend  divers  sums  of  money,  amounting  to  the  sum  of 

dollars,  for  rent  of  the  store  house  above  mentioned,  and  for  other  expenses 
of  his  said  business,  without  deriving  any  benefit  therefrom;  and  also,  by 
reason  of  the  said  injunction,  the  said  A.  B.  was  there  compelled  to  and  did 
pay  out  and  expend  divers  sums  of  money,  amounting  to  the  sum  of 

'  Russell  V.  Rogers,  56  111.  176;  Brownfield  v.  Brownfield,  58  111.  152; 
Alwood  v.  Mansfield,  81  111.  314. 


472  DEBT. 

dollars,  for  the  fees  and  charges  of  solicitors  and  counsel,  and  for  other 
charges  and  expenses,  in  and  about  his  defense  in  that  behalf;  and  also, 
(any  other  special  damage  may  be  here  alleged  in  like  manner):  by  means  of 

which  premises  the  said  A.  B.  has  sustained  damages  to  the  amount  of 

dollars,  and  the  said  damages  remain  wholly  unpaid  to  him,  the  said  A".  B. 
"Whereby  an  action  has  accrued,  etc.  {concluding  as  in  the  above  prece- 
dent). 

The  act  of  1861  does  not  repeal  the  act  of  1845,  but  pro- 
vides for  cases  not  embraced  within  the  last  named  act. 
Upon  the  dissolution  of  an  injunction  "to  stop  the  collection 
of  a  judgment  at  law,"  the  assessment  of  damages  is  gov- 
erned by  the  act  of  1845,  and  no  suggestion  of  damages  is 
necessar}^.  The  extent  of  the  liability,  in  such  a  case,  ap- 
pears on  the  face  of  the  bond.' 

But  an  injunction  to  restrain  the  sale  of  certain  property, 
on  grounds  entirely  independent  of  the  validity  of  the  judg- 
ment, is  not  an  injunction  against  the  judgment.^  And  upon 
the  dissolution  of  an  injunction  to  restrain  an  incorporated 
town  from  instituting  and  prosecuting  actions  at  law  against 
the  complainant,  for  alleged  violations  of  an  ordinance,  there 
must  be  a  suggestion  of  damages,  in  order  to  authorize  a 
decree  therefor.' 

A  statutory  bond,  the  form  of  which  is  prescribed,  will  be 
construed  to  have  the  effect  given  by  the  statute,  which  enters 
into,  and  forms  part  of,  the  instrument.* 

An  injunction  bond  is  designed  to  indemnify  against  imme- 
diate and  actual  loss,  but  not  remote  injuries,  such  as  a  damage 
to  credit,  resulting  from  the  injunction.  The  condition  of  such 
a  bond  includes  the  right  of  recovery  of  costs,  if  such  are  in 
effect  awarded  against  the  complainant  on  a  dissolution  of  the 
injunction.^ 

It  is  immaterial  what  was  the  motive,  or  whether  or  not 
there  Avas  probable  cause,  for  suing  out  an  injunction;  nor  is  it 
any  defense  to  an  action  on  the  bond,  that  the  writ  was  un- 
authorized, because  broader  in  its  commands   than  Avas  war- 

^  Shaffer  v.   Sutton,    49   111.  506;  ^  Forth  y.  Xenia,  54  111.210. 

Smith  V.  Poivell,   50  1\\.  24;  Roberts  *Hibbard    v.    McKindley,  28  III. 

V.  Fahs,  36  111.  268;  Rev.  Stat.  (1893)  240. 
810;  Rev.  Stat.  (1895)  859.  ^ Hibhard   v.    McKindley,  2S   lU 

^Fahs  V.  Roberts,  54111. 192.  240. 


DEBT.  473 

ranted  by  the  order,  it  being  the  duty  of  the  party  suing  out 
the  writ  to  see  that  it  is  correct.' 

It  is  sufficient  if  the  writ  is  shown  to  have  been  the  same  in 
substance  and  effect  as  alleged  in  the  declaration.' 

The  dissolution  of  an  existing  injunction,  for  want  of  a 
proper  bond,  followed  by  an  immediate  order  for  a  new  injunc- 
tion upon  the  filing  of  a  new  bond,  would  not — such  new  bond 
being  filed — be  such  a  dissolution  as  is  contemplated  by  the 
statute  in  relation  to  damages.* 

Where  the  original  injunction  bond  in  a  cause  was  insufficient 
and  a  motion  was  made  to  dissolve  the  injunction  on  that 
ground,  and  thereupon  the  complainant  moved  for  leave  to  file 
an  amended  bond,  and  such  a  bond  was  filed — it  was  held,  that 
from  the  order  of  the  court  refusing  the  motion  to  dissolve  the 
injunction,  the  amended  bond  would  be  presumed  to  be  prop- 
erly on  file,  even  in  the  absence  of  an  order  expressly  granting 
leave  for  it  to  be  filed;  and  it  could  not  be  alleged,  in  an  action 
on  such  bond,  that  it  was  filed  vvithout  leave  of  the  court.* 

In  a  proceeding  to  enjoin  the  collection  of  a  promissory 
note,  the  statute  (of  Illinois)  does  not  prescribe  the  conditions 
to  be  inserted  in  the  injunction  bond;  and  in  such  cases  the 
judge  or  master  may  require  the  complainant  to  give  security 
for  the  payment  of  the  note  if  he  fails  to  maintain  his  suit. 
And  where  a  bond  is  so  conditioned  for  the  payment  of  the 
debt,  the  liability  of  the  surety  therefor  becomes  fixed  when 
the  injunction  is  dissolved,  and  a  recovery  may  be  had  against 
him  in  an  action  on  the  bond.' 

On  the  occasion  of  the  issuing  of  an  injunction  to  restrain 
the  collection  of  a  school-tax,  the  bond  was  conditioned  for 
the  payment  of  "  all  moneys  and  costs  due  or  to  become  due^  and 
such  damages  as  shall  be  awarded,"  etc.  In  an  action  brought 
on  this  bond,  the  court,  after  remarking  that  this  was  not  a 
bond  given  in  any  such  case  as  is  specified  in  the  statute,  held 
that  the  obligors  were  liable  for  the  costs  and  expenses,  in- 
cluding counsel  fees,  incurred  by  the  defendants  in  the  injunc- 

^Sturges  v.  Hart,  45  111.  103.  *  Fami  v.  Tesson,  51  111.  393. 

'^Sturgesv.  Hart,  45  111.  103.  ^Billings  v.  Spragne.  49  111.  509; 

*  Beauchamp  v.  Kankakee,  45  111.  see  McAllister  v.  Clark,  86  III.  236. 
274. 


474  DEBT. 

tion,  in  litigating  that  matter,  but  not  for  the  amount  of  the 
tax  in  controversy.^ 

In  the  case  of  Sturges  v.  Hart,  45  III.  103,  above  mentioned, 
it  is  said  that  if  the  averments  of  damages,  in  the  declaration, 
are  not  sufficiently  specific,  the  objection  must  be  taken  by  de- 
murrer. Also,  that  upon  proof  of  a  loss  of  a  sale  of  lands,  by 
reason  of  an  injunction,  the  extent  of  the  damages  may  be 
shown  by  evidence  of  the  deterioration  in  the  market  price  or 
value  of  the  lands;  but  the  loss  of  sales  must  be  shown  by 
proving  applications  made  by  persons,  in  good  faith,  to  pur- 
chase, and  that  the  failure  to  sell  was  fairly  attributable  to  the 
injunction.  Slight,  indefinite  evidence  on  that  subject  is  not 
sufficient. 

In  cases  of  the  assessment  of  damages,  under  the  act  of 
1861,  requiring  a  suggestion  in  w^riting,  the  court  is  required 
to  hear  evidence  in  respect  thereof;  and  such  evidence  must 
be  preserved  in  the  record,  in  order  to  support  a  decree 
awarding  damages.^  And  there  must  be  a  suggestion  in 
writing,  in  such  case;  and  it  is  of  no  avail  to  file  the  suggestion 
after  the  assessment  is  made.  The  suggestion  is  designed  to 
take  the  place  of  a  declaration,  and  should  be  so  framed  as  to 
inform  the  opposite  party  of  the  nature  and  amount  of  the 
damages  claimed.' 

Where  a  temporary  restraining  order  is  granted,  until  a 
formal  application  for  an  injunction  can  be  made,  and  on  the 
making  of  such  application  the  injunction  is  denied,  there 
can  be  no  assessment  of  damages,  the  restraining  order  not 
requiring  the  action  of  a  court  to  dissolve  it." 

Solicitors'  fees,  and  other  expenses  of  the  litigation,  may 
be  allow^ed  as  damages,  on  the  dissolution  of  an  injunction.^ 

But  when  counsel  fees  and  expenses  are  incurred  in  defeat- 
ing the  action,  and  the  dissolution  of  the  injunction  is   only 

1  Ryan  v.  Anderson,  25  111.  330;  Forth  v.  Xenia,  54  111.  210;  Wing  v. 

see  Mason  v.  City ,  77  111.  533.  Dodge,  80  111.  564. 

^ Forth V.  Xenia,M  III.  210;  Spriyig         *  Palmer  v.   Stqiervisors,  46    111. 

V.  Collector,   78   111.    101;    Steele  v.  447;  Wilson  v.  Haecker,  85  111.  349; 

Boone,   75  111.    457;    Delehanty    v.  Blair  v.  Beading,  99  111.  600;  Stin- 

Warner,   75    111.    185;    Howard  v.  nett  v .  Wilson,  \^ 'Bra.&w .  38. 
Austin,  12  Bradw.  655.  *  Misner  v.    Bidlard,   43  111.  470; 

'^  Winkler  \.  Winkler,  40  111.  179;  Ryan  x.  Anderson,  25  111.  330;  Jos- 


DEBT.  475 

incidental  to  the  result,  such  fees  and   expenses  are  not   al- 
lowable.' 

No.  253.     On  a  license  bond — Action  for  use  of  ivife  of  person  to  ivhom 
intoxicating  liquors  were  sold. 

{Title  of  court,  etc.,  as  in  No.  S34,  ante.)  The  people  of  the  State  of  Illi- 
nois, plaintiff,  which  sues  in  this  behalf  for  the  use  of  A.  B. ,  complains  of 
C.  D.,  E.  F.  and  G.  H,,  defendants,  of  a  plea  that  they  render  to  the  plaint- 
iff, for  the  use  aforesaid,  the  sum  of  fliree  thousand  dollars,  which  they 
owe  to  and  unjustly  detain  from  the  plaintiff:  For  that  whereas  the  said 
C.  D.,  on,  etc.,  in,  etc.,  applied  for  and  obtained  from  the  mayor  and  com 

mon  council  of  the  city  of ,  in  the  county  aforesaid,  a  license  to  keep  a 

grocery,  and  sell  or  give  away   intoxicating  liquors,  at  number , 

street,  in  the  said  city,  from  the  day  aforesaid  until  the day  of,  etc. ; 

and  on  that  occasion  the  defendants,  on  the  day  first  aforesaid,  in  the 
county  aforesaid,  by  their  writing  obligatory,  bearing  date  of  that  day,  and 
now  to  the  court  here  shown,  did  jointly  and  severally  acknowledge  them- 
selves to  be  held  and  firmly  bound  unto  the  plaintiff  in  the  sum  of  three 
thousand  dollars  above  demanded,  to  be  paid  to  the  plaintiff,  upon  the  con- 
dition, nevertheless,  that  if  the  defendants  should  pay  all  damages  to  any 
person  or  persons  which  might  be  inflicted  upon  them,  either  in  person  or 
property,  or  means  of  support,  by  reason  of  the  said  C.  D.'s  selling  or  giv- 
ing away  intoxicating  liquors,  then  the  said  writing  obligatory  was  to  be 
void,  and  otherwise  to  remain  in  full  force.  And  the  plaintiff  in  fact  says, 
that  the  said  C.  D.,  after  the  making  of  the  said  writing  obligatory,  to  wit, 
on  the  day  first  aforesaid,  and  on  divers  other  days  between  that  day  and 
the  said day  of.  etc.,  (or  "  the  commencement  of  this  suit,"  if  the  li- 
cense has  not  expired,)  at  the  above  mentioned  place  in  the  said  ei7?/,  did  sell 
and  give  away,  to  one  L.  M.,  intoxicating  liquors  to  be  drank  in,  upon  and 
about  the  building  and  premises  where  the  same  were  so  sold  and  given  away 
as  aforesaid,  and  in  divers  adjoining  rooms,  buildings  and  premises,  and  other 
places  of  public  resort  connected  with  the  said  building:  And  by  reason  cf 
such  selling  and  giving  away  of  intoxicating  liquors  to  the  said  L.  M.  by 
the  said  C.  D.  as  aforesaid,  he,  the  said  L.  M.,  during  that  time  became  an 
habitual  drunkard,  and  wasted  and  squandered  his  moneys  and  property, 
and  became  greatly  impoverished,  reduced,  degraded  and  ruined,  as  well 
in  his  mind  and  body  as  in  his  estate,  and  neglected  and  ceased  to  pursue 

his  business  and  calling  of  a ,  which  he  had  theretofore  used,  or  in  any 

manner  to  earn  or  provide  a  livelihood  for  the  said  A.  B. ,  who  was  during 
all  that  time,  and  still  is,  the  wife  of  the  said  L.  M. ,  to  wit,  in  the  county 
aforesaid;  and  thereby  the  said  A.  B.,  so  being  the  wife  of  the  said  L.  M. 
as  aforesaid,  has  there  lost  and  been  deprived  of  her  means  of  support:  And 
also  by  reason  of  such  selling  and  giving  away  of  intoxicating  liquors  to  the 

lynv.  Dickerson,  71  111.    25;  Cnm-  'Sutherland  on  Dam.  65,  68;  Oer- 

mings  v.  Burleson,  78  111.  281;  ard  v.  Gateau,  15  111.  App.  520; 
SiJring  v.  Collector,  78  111.  101.  Moriarity  v.  Gait,  23  111.  App.  213. 


476  DEBT. 

said  L.  M.  by  the  said  C.  D.  as  aforesaid,  he,  the  said  L.  M.,  on  the  day  first 
aforesaid,  and  on  the  other  days  above  mentioned,  there  became  intoxicated, 
and  being  so  intoxicated,  and  in  consequence  thereof,  there  assaulted,  beat 
wounded  and  ill-treated  the  said  A.  B.,  and  other  wrongs  to  her  then  and 
there  did:  By  means  of  which  said  premises  the  said  A.  B.  has  sus- 
tained damages  to  the  amount  of dollars;  yet  the  defendants  have  not 

paid  the  same  or  any  part  thereof,  to  her  the  said  A.  B.  Whereby  an  ac- 
tion has  accrued  to  the  plaintiff  to  demand  of  the  defendants,  for  the  use 
aforesaid,  the  said  sum  of  three  thousand  dollars  above  demanded:  Yet 
the  defendants  have  not  paid  to  the  plaintiff  that  sum  of  money,  or  any 
part  thereof,  but  refuse  so  to  do;  to  the  damage  of  the  plaintiff,  for  the  use 

aforesaid,  of dollars,  and  therefore  the  plaintiff,  for  the  use  aforesaid, 

brings  suit,  etc. 

See  the  "  act  to  provide  against  the  evils  resulting  from  the 
sale  of  intoxicating  liquors  in  the  State  of  Illinois."  An  action 
may  be  brought  on  the  bond  ''  for  the  use  of  any  person  or  per- 
sons, or  their  legal  representatives,  who  may  be  injured  by 
the  selling  of  intoxicating  liquors  by  the  person  "  obtaining 
the  license.'  See  also  observations  under  precedent  No.  351, 
post. 

No.  254.     On   the  statute,"^  against  seller  of  intoxicating  liquors,  hy  one 
tvho  has  taken  charge  of  person  intoxicated. 

{Title  of  court,  etc.,  as  in  No.  234,  ante.)  A.  B.,  plaintiff,  by  E.  F.,  his 
attorney,  complains  of  C.  D.,  defendant,  of  a  plea  that  he  render  to  the 

plaintiff  the  sum  of dollars,  which   he  owes  to  and  unjustly  detained 

from  him.  For  that  whereas  the  defendant,  on,  etc.,  in,  etc.,  by  the  sale 
of  intoxicating  liquors  did  cause  the  intoxication  of  one  G.  H. ;  and  there- 
upon the  plaintiff  there  took  charge  of  and  provided  for  the  said  G.  H.,  he 
being  so  intoxicated  as  aforesaid,  and  kept  him,  the  said  G.  H.,  in  conse- 
quence of  such  intoxication,  for  the  space  of days,  from  and  includ- 
ing the  day  aforesaid.  By  means  whereof,  and  by  force  of  the  statute  in 
such  case  made  and  provided,  an  action  has  accrued  to  the  plaintiff  to  de- 
mand of  the  defendant  a  reasonable  compensation  for  so  taking  charge  of 
and  providing  for  the  said  G.  H.  as  aforesaid,  which  said  reasonable  com- 
pensation amounts  to  the  sum  of dollars,  parcel  of  the  said  sum  of 

>1  Starr  &  Curtis,  969;  see   Cobb  ^Ilev.  Stat.  (1893),  613;  Rev.  Stat. 

V.  People,  8'i  111.511;  Peo2^le\.Crot-  ^895),   661;    1  Starr  &  Curtis  971; 

ty,  93  111.  180;    Wright  v.    People,  Confrey  v.   Stark,  73  111.  187;  Fer- 

101  111.  126;  3Ioore  v.  People,  109  111.  guson  v.  People,  73  111.  559;  Carroll 

499;  Holmes  v.  A^ooe,  15  Bradw.  164;  v.  People,  13  Bradw.  206;  Brannan 

Johnson  v.  Dnimmond,  16  Bradw.  v.  Adams,  76  III.  331. 
641;    OHalloran   v.    Kingston,    16 
Brad.  659. 


DEBT.  477 

money  above  demanded,  and  also  the  sum  of  two  dollars  for  each  day  the 
said  G.  H,  was  so  kept  by  the  plaintiff  as  aforesaid,  amounting  to  the  fur- 
ther sum  of dollars,  residue  of  the  said  sum  of  money  above  demanded. 

Yet  the  defendant,  though  requested,  has  not  paid  to  the  plaintiff  the  said 

sum  of dollars  above  demanded,  or  any  part  thereof,  but  refuses  so  to 

do;  to  the  damage  of  the  plaintiff  of dollars,  and  therefore  he  brings 

his  suit,  etc. 

The  8th  section  of  the  statute  above  referred  to  provides 
that  "  every  person  who  shall,  by  the  sale  of  intoxicating 
liquors,  with  or  without  a  license,  cause  the  intoxication  of 
any  other  person,  shall  be  liable  for  and  compelled  to  pay  a 
reasonable  compensation  to  any  person  who  may  take  charge 
of  and  provide  for  such  intoxicated  person,  and  two  dollars 
per  day  in  addition  thereto  for  every  day  such  intoxicated 
person  shall  be  kept  in  consequence  of  such  intoxication, 
which  sums  may  be  recovered  in  an  action  of  debt  before  any 
court  having  jurisdiction.' 

No.  255.     On  the  statute,"^  for  cutting  trees,  etc. 

{Title  of  court,  etc.,  as  in  No.  234,  ante.)  A.  B.,  plaintiff,  by  E.  F.,  his 
attorney,  complains  of  C.  D.,  defendant,  of  a  plea  of  debt:  For  that  whereas 

the  defendant,  on  the  day  of  ,  in  the  year  18—,  in  the  county 

aforesaid,  ten  black  walnut  trees,  ten  black  walnut  saplings,  ten  black  oak. 
trees,  ten  black  oak  saplings,  ten  elm  ti-ees,  ten  elm  sapliags,  ten  cottonwood 
trees  and  ten  cottonwood  saplings,  then  standing  and  growing  upon  certain 
land,  there  situate,  then  belonging  to  the  plaintiff,  did  cut,  fell,  box,  bore, 
destroy  and  carry  away,  without  having  first  obtained  permission  so  to  do 
from  the  plaintiff,  then  the  owner  of  the  said  land  as  aforesaid;  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided:  Whereby,  and  by 
force  of  the  said  statute,  an  action  has  accrued  to  the  plaintiff  to  demand 
of  the  defendant  the  sum  of  eight  dollars  for  each  of  the  said  black  walnut 
trees,  black  walnut  saplings,  black  oak  trees  and  black  oak  saplings,  and  the 
sum  of  three  dollars  for  each  of  the  said  elm  trees,  elm  saplings,  cotton- 
wood trees  and  cottonwood  saplings,  together  amounting  to  the  sum  four 
hundred  and  forty  dollars.  Yet  the  defendant,  though  requested,  has  not 
paid  to  the  plaintiff  the  last  mentioned  sum  of  money,  or  any  part  thereof, 

but  refuses  so  to  do;  to  the    damage  of  the  plaintiff  of dollars,  and 

therefore  he  brings  his  suit,  etc. 

In  an  action  on  a  statute,  to  recover  a  penalt}'-,  the  damages 

•1  Starr  &  Curtis,  971;  Rev.  Stat.  (1895)  1524;  Rev.  Stat.  (1893)1426; 
(1893),  613;  Rev.  Stat.  (1895),  661.  see  Cushinan  v.  Oliver,  81  III.  444. 

«  2  Starr  &  Curtis  2388;  Rev.  Stat. 


478  DEBT. 

to  be  inserted  in  the  declaration  are  merely  nominal.  The 
statute  of  Illinois,  giving  this  action  to  the  owner  of  the  land, 
also  gives  an  action  of  debt  qui  tarn  to  any  person  who  will 
first  sue  for  the  penalty — one  half  thereof  to  go  to  the  person 
so  suing,  and  the  other  half  to  the  owner.  If  deemed  expe- 
dient, the  land  may  be  described  in  the  declaration,  but  this 
does'not  seem  to  be  necessary. 

The  term  owner,  in  the  statute,  is  held  to  mean  the  person 
having  an  estate  in  fee  simple  in  the  land.'  A  less  estate  will 
not  authorize  a  recovery  under  the  statute.^ 

The  plaintiff  must  aver  that  he  was  the  owner  of  the  land;'' 
consequently  it  is  not  sufficient  to  merely  allege  in  the  decla- 
ration that  the  defendant  broke  and  entered  the  close  of  the 
plaintiff,  and  cut  and  carried  away  certain  trees  growing 
thereon.*  And  the  plaintiff  is  bound  to  show  a  title  in  the 
land,  in  fee  simple.^  Actual  possession  of  the  land  by  the 
plaintiff,  claiming  the  fee,  would  be  presumptive  evidence  of 
title  in  him  to  that  extent;  ®  but  in  the  absence  of  evidence  of 
this  character,  he  must  produce  documentary  proof  of  his 
title.  An  admission  made  by  the  defendant,  before  the  trial, 
and  not  for  the  purposes  thereof,  that  the  trees  were  cut  on 
the  plaintiff's  land,  is  not  sufficient  evidence  on  this  subject.^ 

In  an  action  on  this  statute,  all  the  owners  of  the  land  must 
join.  The  omission  of  one  who  should  have  joined  as  plaint- 
iff is  fatal,  and  does  not  merely  go  in  mitigation  of  the  recov- 
ery, as  the  penalty  is  not  divisible.^ 

The  declaration  should  allege  that  the  defendant  felled  the 
trees  without  having  first  obtained  permission  so  to  do  from 
the  owner  of  the  land.' 

1  Wright  v.  Bennett,  3  Scam.  258;  »  Wright  v.  Bennett,  3  Scam.  258. 
Jarrett  v.  Vaughn,  2  Gilm.  138;  Mason  v.  Park,  3  Scam.  532;  White- 
Mason  V.  Park,  3  Scam.  532;  White-  side  v.  Divers,  4  Scam.  336;  Edwards 
side  V.  Divers,  4    Scam.   336;    Ed-  v.  Hill,  11  111.  22. 

wards  v.  Hill,  11  111.  22;  Behymer  v.  «  Mason  v.  Park,   3  Scam.    532; 

Odell,  31  111.  App.  350.  Clay  v.  Boyer,  5  Gilm.  506;  but  see 

2  Jarrett  v.  Vaughn,  2  Gilm.  132.       Whiteside  v.  Divers,  4  Scam.  336. 

*  Wright  v.  Bennett,  3  Scam.  258;  '  Mason  v.  Park,  3  Scam.  532. 
3Iason  v.  Park,  3  Scam.  532;  White-  »  Edwards  v.  Hill,  11  111.  22. 

side  V.  Divers,  4  Scam.  336;  Edwards  ®  Whitecraft  v.  Vandever,  12  lU. 
V.  Hill,  11  111.  22.  235. 

*  Wright  v.  Bennett,  3  Scam.  258. 


DEBT.  479 

In  order  to  recover,  it  is  necessary  to  show  that  the  stat- 
ute has  been  willfully  violated,  by  proof  that  the  defendant  in 
person  cut  the  trees,  or  by  his  command  or  authority  induced 
another  person  to  do  so.  It  is  not  sufficient  to  show  that  the 
trees  were  cut  by  persons  employed  by  the  defendant  to  cut 
trees  on  his  own  land,  and  were  by  them  appropriated  to  his 
use.* 

"Where  the  defendant  has  cut  trees,  knowing  them  not  to  be 
on  land  whereon  he  had  any  right  so  to  do,  the  act  is  pre- 
sumed to  have  been  willful;  and  it  is  not  necessary  that  the 
defendant  should  have  known  that  the  land  belonged  to  the 
plaintiff.'' 

Although  the  defendant,  to  be  liable  under  this  statute, 
must  have  committed  the  act  knowingly  and  willfullv,^  it  is 
not  necessary  to  allege  in  the  declaration  that  the  act  was 
"knowingly  and  willfully"  committed,  the  statute  not  contain- 
ing those  words.  In  declaring  upon  a  statute,  it  is  a  correct 
rule  to  describe  the  cause  of  action,  whatever  it  may  be,  in 
the  words  of  the  statute,  which  words  are  to  be  construed  to 
mean  the  same  thing  in  a  declaration  as  in  the  statute.* 

The  allegation  of  the  precise  time  of  the  commission  of  the 
act  is  not  essential;  and  where  a  declaration  charged  the  cut- 
ting of  trees  on  a  certain  day  "  and  on  divers  other  days  be- 
tween that  day,"  etc.,  it  was  held  sufficient,  on  demurrer, 
though  it  was  urged  that  the  day  first  mentioned  was  not 
within  the  period  fixed  by  the  statute  of  limitations."  Instead 
of  claiming  a  gross  sum  for  the  cutting  of  the  whole  number 
of  trees,  the  declaration  ought,  in  strictness,  to  show  that  the 
defendant  has  become  liable  to  pay  the  amount  fixed  by  the 
statute  for  each  tree  and  sapling  of  the  different  kinds,  nam- 
ing them.*  A  remedy  on  a  penal  statute  must  be  strictly  pur- 
sued, and  a  plaintiff  can  not  recover  unless  he  brings  himself 
clearly  within  its  provisions.' 

•  Cushing  v.  Dill,  2  Scam.  460.  235;  see  Behymer  v.   Odell,  31   111. 
«  Watkins  v.  Gale,  13  111.  152.  App.  350. 

»  Whitecraft  v.   Vandever,  12  111.  '  Chicago  v.    Rumpff,  45    III.  90; 

235;  Cushing  v.  Dill,  2  Scam,  460.  Bullock    v.     Goemhle,    45    111.    218; 

*  Gebhart  v.  Adams,  23  111.  397.  Figueria  v.  Pyatt,  88  111.  402;  People 

*  Gehhart  v.  Adams,  23  111.  397.  v.  Fesler,  115  111.  150. 

•  Whitecraft  v.   Vandever,  12  III. 


480  DEBT. 

No.  256.     On  the  statute^  against  a  drover,  foi-  driving  off  horses  and 

cattle,  etc. 

{Title  of  conrt,  etc.,  as  in  No.  S34,  ante.)  A.  B.,  plaintiff,  by  E.  F.,  his 
attorney,  complains  of  C.  D.,  defendant,  of  a  plea  that  he  render  to  the 
plaintiff  the  sum  of  tico  thousand  eight  hundred  dollars,  which  he  owes  to 
and  unjustly  detains  from  him:  For  that  whereas  on,  etc.,  in,  etc.,  the 
plaintiff  was  a  citizen  of  this  state,  and  was  the  owner  of  five  horses,  each 
of  the  value  of  one  hundred  dollars,  and  five  head  of  neat  cattle,  each  of  the 
value  of  forty  dollars,  and  the  defendant,  then  beinj;  a  drover  and  person 
engaged  in  driving  horses  and  cattle  through  a  certain  part  of  this  state,  to 
wit,  through  the  county  aforesaid,  did  then  and  there  drive  off,  and  know- 
ingly and  willingly  suffer  and  permit  to  be  driven  off,  the  said  horses  and 
neat  cattle  of  the  plaintiff,  from  the  premises  of  the  plaintiff  {or  "  from  the 
range  in  which  his  stock  then  usually  ran,")  to  a  distance  exceeding  five 
miles  from  the  said  premises  {or  "  range  "),  contrary  to  the  form  of  the  stat- 
ute in  such  case  made  and  provided:  Whereby,  and  by  force  of  the  said 
statute,  an  action  has  accrued  to  the  plaintiff  to  demand  of  the  defendant 
the  sum  of  two  hundred  dollars  for  each  of  the  said  horses  so  driven  away 
as  aforesaid,  and  the  sum  of  eighty  dollars  for  each  head  of  the  said  neat 
cattle  so  driven  away  as  aforesaid,  together  amounting  to  the  sum  of 
fourteen  hundred  dollars,  parcel  of  the  said  sum  of  two  thousand  eight 
hundred  dollars  above  demanded. 

{Second  count.)  And  whereas  also  on  the  day  aforesaid,  in  the  county 
aforesaid,  the  plaintiff  was  a  citizen  of  tins  state,  and  was  the  owner  oi  five 
other  horses,  each  of  the  value  of  one  hundred  dollars,  and  five  other  head 
of  neat  cattle,  each  of  the  value  of  forty  dollars;  and  the  defendant,  then 
being  a  drover  and  person  engaged  in  herding  and  driving  certain  horses 
and  cattle  in  a  certain  part  of  this  state,  to  wit,  in  the  county  aforesaid, 
did  then  and  there  permit  the  last  mentioned  horses  and  neat  cattle  of  the 
plaintiff  to  remain  with  the  defendant's  drove  for  a  longer  period  than  two 
days  and  nights  at  one  time;  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided  :  Whereby,  and  by  force  of  the  said  statute,  an 
action  has  accrued  to  the  plaintiff  to  demand  of  the  defendant  the  sum  of 
tivo  hundred  dollars  for  each  of  the  last  mentioned  horses  so  permitted  to 
remain  with  the  defendant's  drove  as  aforesaid,  and  the  sum  of  eighty  dol- 
lars for  each  head  of  the  last  mentioned  neat  cattle  so  permitted  to  remain 
with  the  defendant's  drove  as  aforesaid,  together  amounting  to  the  sum  of 
fourteen  hundred  dollars,  residue  of  the  said  sum  of  two  thousand  eight 
hundred  dollars  above  demanded. 

Yet  the  defendant,  though  requested,  has  not  paid  to  the  plaintiff  the  last 
mentioned  sum  of  money,  or  any  part  thereof,  but  refuses  so  to  do;  to  the 
damage  of  the  plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc. 

The  second  section  of  the  Illinois  statute  concerning 
"  Drovers,''  provides  that  "  in  any  action  commenced  under  the 

» 1  Starr  &  Curtis,  977;  Rev.  Stat.  (1893)  615;  Rev.  Stat  (1895)  663. 


DEBT.  481 

preceding  section,  a  capias  may  issue  against  the  defendant  or 
defendants,  upon  the  plaintiff  stating  on  oath  that  he  believes 
some  one  or  more  of  his  cattle  or  other  stock  has  been  driven 
off  by  a  drover,  and  that  he  believes  the  same  to  be  of  a  cer- 
tain value,  to  be  indorsed  on  the  writ;  and  the  proceedings 
thereon  shall  be  the  same  as  in  other  actions  commenced  by 
capias:  Provided,  however,  that  no  exception  shall  be  taken 
to  the  form  of  the  oath  aforesaid."  The  third  section  pro- 
vides that  upon  judgment  rendered  against  the  defendant,  a 
fieri  facias  against  his  goods  and  chattels  may  immediately 
issue,  without  affidavit,  unless  an  appeal  shall  at  once  be  per- 
fected.* 

Proof  that  the  defendant  was  driving  cattle  through  a  part 
of  this  state,  when  some  cattle  of  a  citizen  got  into  the  drove; 
that  the  defendant  knew  they  were  in  his  drove,  and  he  him- 
self aided  in  branding  them  with  the  initial  letter  of  his  name, 
and  castrated  a  bull  which  was  among  the  number;  and  that 
he  drove  them  twenty-five  miles  from  their  usual  range, 
through  a  thickly  settled  country — there  being  a  habitation  on 
every  mile  of  the  route — is  sufficient  to  support  an  action  for 
the  penalty,  under  the  statute." 

Exceptions  and  provisos  in  statutes. — In  an  action 
founded  on  a  penal  statute,  the  subject  of  any  exception,  in  the 
enacting  ov prohihitory  clause  of  the  act,  must,  in  the  declara- 
tion, be  excluded  by  averment:  But  of  any  proviso  or  qual- 
ification, in  a  separate  substantive  clause,  the  declaration  need 
not  take  notice.^  In  the  first  case,  the  exception  is  an  essential 
part  of  the  description  of  the  offense  or  thing  prohibited;  in  the 
latter,  the  proviso,  etc.,  is  only  distinct  matter  of  defense. 
Thus,  if  a  statute  enacts  that  if  any  person,  not  having  a  certain 
qualification  (as  a  freehold  estate),  shall  kill  certain  game,  he 
shall  incur  a  certain  penalty;  the  declaration,  in  an  action  on  the 
statute,  must  aver  that  the  defendant  had  not  such  a  freehold. 
But  if  the  act  contains  a  separate  proviso,  that  if  he  shall  have 
obtained  a  license  for  the  killing  from  a  magistrate,  he  shall 

»  Starr  &  Curtis  978;  Rev.  Stat.  v.  Stone,  1  East  646;  Spiers  v.  Bar- 
(1893),  615;  Rev.    Stat.  (1895),  663.  ker,  1  T.  R.  141;  King  v.  Pratten,  6 

5  Arnold  v.  Ludlam,  38  111.  190.  T.  R.  559. 

2  Rex  v.  Jarvis,  1  Burr.  153;  King 
31 


482  DEBT. 

not  be  liable  to  a  conviction,  it  need  not  be  stated  that  he  had 
no  such  lieeiise.^ 

No.  257.     On  the  statute,  against  a  sheriff,  for  not  admitting  attorney  to 

see  prisoner. 

(Title  of  court,  etc.,  as  in  No.  234,  ante.)  A.  B.,  plaintiflF,  by  E.  F.,  his 
attorney,  complains  of  C.  D.,  defendant,  of  a  plea  of  debt:  For  that 
whereas  the  defendant,  on,  etc.,  was  sheriff  of  the  county  aforesaid,  and  as 
such  sheriff  there  had  the  custody  of  the  plaintiff,  who  was  then  imprisoned 
and  restrained  of  his  liberty,  in  the  comtnon  jail  of  the  county  aforesaid, 

on  a  certain  charge  of  theretofore   and  then  alleged   against  him; 

and  the  plaintiff  then  and  there  desiring  to  see  and  consult  one  L.  M. ,  then 
a  practicing  attorney  at  law  of  this  state,  then  and  there  requested  the  de- 
fendant to  admit  the  said  L.  M.  to  see  and  consult  the  plaintiff,  alone  and 
in  private,  at  the  jail  aforesaid;  and  although  the  said  L.  M,  was  then  and 
there  ready  and  willing,  and  offered,  to  see  and  consult  the  plaintiff  tis 
aforesaid,  and  although  there  was  then  and  there  no  imminent  danger  of 
the  escape  of  the  plaintiff,  yet  the  defendant  did  not  nor  would  then,  or  at 
any  other  time,  admit  the  said  L.  M.  so  to  see  and  consult  the  plaintiff, 
alone  and  in  private,  at  the  said  jail,  as  aforesaid,  but  refused  so  to  do;  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  provided:  Whereby, 
and  by  force  of  the  said  statute,  an  action  has  accrued  to  the  plaintiff  to 
demand  of  the  defendant  the  sum  of  one  hundred  dollars.  Yet  the  defend- 
ant, though  requested,  has  not  paid  to  the  plaintiff  the  said  sum  of  money, 
or  any  part  thereof,  but  refuses  so  to  do;  to  the  damage  of  the  plaintiff  of 
dollars,  and  therefore  he  brings  his  suit,  etc. 

The  statute  of  Illinois  provides  that  "  all  public  officers, 
sheriffs,  coroners,  jailers,  constables  or  other  officers  or  per- 
sons having  the  custody  of  any  person  committed,  imprisoned 
or  restrained  of  his  liberty  for  any  alleged  cause  whatever, 
shall,  except  in  cases  of  imminent  danger  of  escape,  admit  any 
practicing  attorney  at  law  of  this  state,  w^hom  such  person  so 
restrained  of  his  liberty  may  desire  to  see  or  consult,  to  see  and 
consult  such  person  so  imprisoned,  alone  and  in  private,  at  the 
jail  or  other  place  of  custody;  and  when  any  such  prisoner  is 
about  to  be  removed  beyond  the  limits  of  this  state,  by  any 
person  or  public  officer,  under  any  pretense  whatever,  he  or 
she  shall  at  all  times  be  entitled  to  reasonable  delay  for  the 
purpose  of  obtaining  counsel,  and  of  availing  himself  or  her- 
self of  the  laws  of  this  state  for  the  security  of  personal  lib- 
ertv."     Any  violation  of  this  act  subjects  the  person  offending 

'Gould's  PI.  166. 


DEBT.  483 

to  a  forfeiture  of  one  hundred  dollars,  to  be  recovered  bv 
action  of  debt,  in  any  court  of  competent  jurisdiction.' 

No.  258.     On  the  statute,"^  by  landlord  against  tenant,  for  double  rent,  for 
not  quitting  in  pursuance  of  notice,  etc. 

{Commence  as  in  last  precedent.)  For  that  whereas  the  defendant,  at  and 
before  the  time  of  the  making  of  the  demand  and  giving  of  the  notice  herein- 
after mentioned,  and  from  thence  until  and  upon  the day  of,  etc.  (the  day 

when  the  tenancy  determined),  held  and  enjoyed  a  certain  parcel  of  land, 
with  the  appurtenances,  situate,  etc.,  as  tenant  thereof  to  the  plaintiff  {here 
state  the  tenancy,  lohich  may  be  asfolloics — )  from  year  to  year,  for  so  long  a 
time  as  the  plaintiff  and  the  defendant  should  respectively  please,  the  rever- 
sion of  the  said  parcel  of  land,  with  the  appurtenances,  during  the  said 
tenancy,  belonging  to  the  plaintiff,  to  wit,  in  the  county  aforesaid;  and 
thereupon,  while  the  defendant  so  held  and  enjoyed  the  said  tenements,  and 
while  the  said  reversion  so  belonged  to  the  plaintiff,  as  aforesaid,  to  wit,  on, 
etc.  (the  date  of  the  notice),  he,  the  plaintiff,  there  demanded  and  required 
of  the  defendant,  and  gave  him  a  notice  in  writing,  to  deliver  the  possession 

of  the  said  tenements  to  the  plaintiff  on  the  said day  of,  etc.,  on  which 

day  the  term  of  the  defendant  in  the  said  tenements  expired:  Nevertheless 
the  defendant,  not  regarding  the  statute  in  such  case  made  and  provided, 
did  not  nor  would  at  that  time  deliver  the  possession  of  the  said  tenements 
to  the  plaintiff,  but  refused  so  to  do,  and  there  willfully  held  over  the  said 
tenements,  after  the  said  demand  and  notice  so  made  and  given,  and  after 

the  expiration  of  the  said  term  as  aforesaid,  for  the  space  of then 

next  following,  during  all  which  time  the  defendant  there  kept  the  plaintiff 
out  of  the  possession  of  the  said  tenements  (he,  the  plaintiff,  during  all  that 
time,  being  there  entitled  to  the  possession  thereof),  contrary  to  the  form  of 
the  said  statute.     And  the  plaintiff  avers  that  the  said  tenements,  during 

the  time  last  mentioned,  were  of  the  yearly  value  of dollars.     By  means 

of  which  premises,  and  by  force  of  the  said  statute,  an  action  has  accrued  to 

the  plaintiff  to  demand  of  the  defendant  the  sum  of dollars,  being  at 

the  rate  of  double  the  yearly  value  of  the  said  tenements  for  the  time  the 
plaintiff  was  so  kept  out  of  the  possession  thereof  as  aforesaid. 

{Add  tivo  counts  for  use  and  occujjation — see  No.  241,  ante — and  the  ac- 
count stated,  and  conclude  as  follows:) 

Yet  the  defendant,  though  requested,  has  not  paid  to  the  plaintiff  the 
several  sums  of  money  above  demanded,  together  amounting  to  the  sum 

of dollars,  or  any  part  thereof,  but  refuses  so  to  do;  to  the  damage  of 

the  plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc.^ 

Where  the  tenant  gives  notice  to  quit,  and  does  not  deliver 
possession  accordingly,  he  forfeits  "  double  the  rent  or  sum 

'Rev.    Stat.  (1895),   553;    Starr  &  '  Starr  &  Curtis  1491;  Rev.   Stat. 

Curtis,  818;  Rev.  Stat.  (1893)  510.  (1893)  919;  Rev.  Stat.  (1895)  975. 

«  See  Chit  PI.  493. 


484  DEBT. 

which  would  otherwise  have  been  due,  to  be  collected  in  the 
same  manner  as  the  rent  otherwise  due  should  have  been  col- 
lected." ' 

No.  259.    Declaration  to  recover  delinquent  taxes  on  forfeited  property. 

In  the Circuit  Court. 

Term,  A.  D.  18—. 

State  of  Illinois,  | 
County  of S 

The  people  of  the  State  of  Illinois,  plaintiff,  by  G.  H.,  attorney  general, 
{or  E.  F.,  state's  attoi-ney,  etc.,)  complains  of  C.  D.,  defendant,  of  a  plea 

that  he  render  to  the  plaintiff  the  sum  of dollars,  which  he  owes  to 

and  unjustly  detains  from  the  plaintiff;  for  that  the  defendant,  heretofore, 

to  wit,  on,  etc.,  was  and  still  is  indebted  to  the  plaintiff  in  the  sum  of 

dollars,  for  and  on  account  of  divers  amounts  of  taxes,  interest,  penalties 
and  costs  due  and  unpaid  against  divers  tracts,  pieces,  parcels  and  lots  of 
land  of  the  defendant,  situated  in  said  county,  and  before  said  day  forfeited 
to  the  State  of  Illinois,  for  the  non-payment  of  the  said  taxes,  interest, 
penalties  and  costs,  which  said  real  estate,  together  with  the  amount  for 
which  the  same  was  forfeited,  as  aforesaid,  is  as  follows,  to  wit :  {Here  in- 
sert description.) 

And  the  plaintiff  avers  that  the  defendant  on,  to  wit,  the  first  day  of 
May,  A.  D.  18 — ,  was  and  still  is  the  owner  and  possessed  of  the  said  real 
estate  against  which  the  said  delinquent  taxes  are  chai'ged. 

Wherefore,  and  by  force  of  the  statute  in  such  case  made  and  provided, 
an  action  hath  accrued  to  the  plaintiff  to  have  and  demand  of  and  from  the 
defendant  the  said  several  amounts  of  money,  the  same  being  in  the  aggre- 
gate, the  said  sum  of dollars,  first  above  mentioned;  yet  the  defend- 
ant, though  requested,  hath  not  paid  the  several  sums  of  money,  nor  any 
or  either  of  them,  nor  any  part  thereof,  but  fails  and  refuses  so  to  do;  to 
the  damage  of  the  plaintiff  of dollars,  wherefore  the  plaintiff  brings 

this  suit.  etc. 

E.  F.,  Att'y  for  Pl'ff. 

Section  230  of  the  revenue  law  provides  that  the  county- 
board  may  at  any  time  institute  suit,  in  an  action  of  debt,  in  the 
name  of  the  people,  in  any  court  of  competent  jurisdiction, 
for  the  amount  of  taxes  due  on  forfeited  property,"  or  for  the 
recovery  of  any  personal  property  tax  due  from  any  person, 
firm  or  corporation.^ 

'  Rev.   Stat.   (1893)  920;    Starr  &  see  People  v.  Biggins,   96  111,  383; 

Curtis  'l492;  1   Chit.    PL    112;   Rev.  Peojile  v.  Davis,  112  111.   272;  Bow- 

Stat.  (1895)  976.  man  v.  People,  114  111.  474. 

■'  Rev.  Stat.  (1893),  1217;  Rev.  Stat.  *  Ibid. 
(1895),  1302;  2  Starr  &  Curtis,  2105; 


DEBT.  485 

A  recovery  may  be  had  of  the  entire  personal  tax,  and  the 
county,  on  collection  of  the  same,  will  be  required  to  pay 
over  to  the  several  municipal  corporations  their  respective 
shares.' 

The  liability  for  taxes  is  statutory  and  arises  upon  the  fail- 
ure of  the  citizen  to  pay  taxes  on  property  owned  by  him  on 
the  first  day  of  May  in  any  year.  Such  facts  must  therefore 
be  averred  in  the  declaration,  not  only  that  show  the  statutory 
liability,  but  the  right  of  the  plaintiff  to  recover.* 

A  declaration  against  a  corporation  is  insufficient  where  it 
fails  to  state  that  it  had  its  principal  place  of  business  at  the 
place  where  such  taxes  were  assessed.^ 

Against  railroad  companies. — The  action  lies  against  a 
railroad  company  for  extortion,  or  for  making  any  unjust  dis- 
crimination as  to  passenger  or  freight  rates,  or  the  rates  for 
the  use  and  transportation  of  railroad  cars,  or  in  receiving, 
handling  or  delivering  freights.*  And  against  railroad  com- 
panies, their  officers,  agents  and  employes,  and  every  owner, 
lessee,  manager  or  employe  of  any  warehouse,  who  shall  will- 
fully neglect  to  make  and  furnish  any  report  to  the  railroad 
and  warehouse  commissioners,  as  required  by  the  statute;  or 
who  shall  willfully  and  unlawfully  hinder,  delay  or  obstruct 
said  commissioners  in  the  discharge  of  the  duties  imposed 
upon  them.  All  such  prosecutions  shall  be  in  the  name  of  the 
people  of  the  State  of  Illinois.  The  act,  however,  is  not  to  be 
construed  so  as  to  prevent  any  person  from  prosecuting  any 
qui  tain  action,  as  authorized  by  law,  and  of  receiving  such  part 
of  the  amount  recovered  in  such  action  as  is  or  may  be  pro- 
vided under  any  law  of  this  state.'* 

Section  36  of  the  act  on  railroads  and  warehouses  provides 
that  if  any  railroad  corporation,  or  any  of  its  agents,  servants 
or  emplo3''es,  shall  violate  any  of  the  provisions  of  the  statute 
in  relation  to  fencing  and  operating  railroads,  such  cor])ora- 
tion,  agent,  servant  or  employe  shall  severally  be  liable  to  a 
fine  of  not  less  than  $10,  nor  more  than  $200,  to  be  recovered 

»  Dolby  V.  People,  124  111.  66.  *  2  Starr  &  Curtis  1963;  Rev.  Stat. 

*  Gas  Co.  V.  People,  138  111.  336.       (1893)  1127:  Rev.  Stat.  (1895)  1211. 
3  Gas  Works  v.People,  156  111.  387.  *  Rev.  Stat.  (1893):  Rev.  Stat.  (1895), 

1225;  2  Starr  &  Curtis. 


486  DEBT. 

in  an  action  of  debt,  in  the  name  of  the  people  of  the  State  of 
Illinois,  for  the  use  of  any  person  aggrieved,  before  any  court 
of  competent  jurisdiction.' 

Against  county  clerk. — Sections  13  and  14  of  the  statute 
on  marriages  provide  that  "  if  any  county  clerk  shall  issue  a 
license  for  the  marriage  of  a  man  under  the  age  of  twenty-one 
years,  or  of  a  woman  under  the  age  of  eighteen  years,  without 
the  consent  of  his  or  her  father,  (or  if  he  is  dead  or  incapable, 
or  not  residing  with  his  family,  of  his  or  her  mother  or  guard- 
ian, if  he  or  she  have  one,)  first  had  thereto,  he  shall  forfeit 
and  pay  the  sum  of  $300  for  each  offense,  to  be  recovered  by 
such  father,  mother  or  guardian,  in  an  action  of  debt,  in  any 
court  of  competent  jurisdiction."  * 

"  If  any  county  clerk  shall  refuse  or  neglect  to  register  and 
file  any  marriage  certificate  according  to  law,  for  more  than 
thirty  days  after  the  same  is  returned  to  him  for  that  purpose 
(his  fees  therefor  being  paid),  he  shall  forfeit  and  pay  $100,  to 
be  recovered  by  the  party  injured,  in  an  action  of  debt,  in  any 
court  of  competent  jurisdictioi>" 

Sections  15  and  16  of  said  statute  provide  that  if  an}'-  minis- 
ter, judge  or  justice  of  the  peace,  or  any  other  officer  or  person 
or  persons,  shall  celebrate  a  marriage  without  a  license  having 
been  first  obtained  therefor  as  provided  by  law,  and  if  any 
minister,  judge  or  justice  of  the  peace,  having  celebrated  a 
marriage,  or  any  clerk  or  secretary  of  any  society,  church  or 
denomination  among  whom  a  marriage  is  celebrated,  and 
whose  duty  it  shall  be  to  make  and  return  a  certificate  of  such 
marriage,  shall  fail  to  make  and  return  to  the  county  clerk, 
such  certificate  in  the  time  and  manner  provided  by  law,  he  shall 
forfeit  and  pay  ^JSIOO,  to  be  recovered  in  the  name  of  the  people 
of  the  State  of  Illinois,  in  action  of  debt,  in  any  court  of  com- 
petent jurisdiction.' 

DEFENSES   TO   THE    ACTION   OF   DEBT. 

The  rules  which  have  been  laid  down  respecting  defenses  in 
the  action  of  assumpsit  are  generally  applicable  in  debt.    The 

•Starr  &  Curtis  1948;    Rev.  Stat.  111.171;  Lyndon  v.  Lipidon,   69  111. 

(1893),  1121;   Rev.  Stat.  (1895),  1305.  43;  Gilbert   v.  Bone,  79  111.  341;    Hil- 

2  Rev.  Stat.  (1895),  1023;  Rev.  Stat.  holdt  v.  Caraker,  41  111.  App.  596. 
(1893),  960;  see  Campbell  v.  Beck,  50         ^  Rev.  Stat.  (1895),  1023. 


DEBT.  487 

pleas  in  abatement,  and  many  of  those  in  bar,  in  assumpsit, 
with  a  slight  alteration,  can  be  used  in  this  action;  and  it  is  not 
deemed  necessary  or  expedient  to  again  insert  them  in  this 
placej  but  a  few  forms  of  pleas  in  bar,  adapted  to  this  form  of 
action,  will  be  here  presented. 

Pleas  in  abatement. — For  pleas  in  abatement  and  proceed- 
ings thereon,  and  general  observations  on  the  subject,  see 
pleas  in  abatement,  page  35,  ante. 

Pleas  in  bar. — The  general  rules  and  observations  concern- 
ing pleas  in  bar  in  assumpsit  are  for  the  most  part  applicable 
to  pleas  of  the  same  nature  in  debt. 


Term,  18—. 


No.  260.    Plea  of  nil  debet. 
In  the Court. 

CD.) 

ats.    ^Deht. 

A.  B.  )  And  the  defendant  by  G.  H.,  his  attorney,  comes  and  defends 
the  wrong  and  injury,  when,  etc. ,  and  says  that  he  does  not  owe  the 
said  sum  of  money  above  demanded,  or  any  part  thereof,  in  manner  and 
form  as  the  plaintiff  has  above  complained  against  him;  and  of  this  the  de- 
fendant puts  himself  upon  the  country,  etc. 

The  plea  of  nil  debet  is  the  general  issue  in  those  actions 
where  it  is  properly  pleadable.  It  is  a  proper  plea  in  debt  on 
simple  contracts  or  legal  liabilities,  or  for  an  escape,  or  on  a 
penal  statute,  or  when  a  deed  is  mere  inducement  to  the  action; 
but  not  when  the  action  is  founded  on  a  specialty,  (as  on  a 
bail  bond,  etc.,)  or  on  a  record.'  It  is  a  good  plea  to  an  action 
on  a  justice's  judgment  of  another  state." 

As  a  judgment  of  a  court  of  record  of  another  state  is  con- 
clusive as  to  the  amount  of  the  debt,  the  plea  of  nil  debet  is  not 
proper  in  an  action  on  such  judgment,""  but  it  seems  that  this  plea 
is  admissible  in  debt  on  a  judgment  of  a  court  of  another  state, 
when  the  court  had  no  jurisdiction.*     To  an  action  of  debt  on 

'  Chit.  PI.  422,  423;  Jones  v.  Pope,  Warren  v.  Flagg,  2  Pick.  248;  Cole 

1  Saund,    38;  Bullis  v.    GMdens,  8  v.  Driskell,  1  Blackf.  16. 

Johns.  83;  Chipps  v.  Yancey,  Breese  ^  Laicrence  v.  Jan-is.  32  111.  305; 

19;  Davis   v.  Burton,   3  Scam.    42;  Ins.  Co.  v.  Barker,  55  III.  241. 

King  v.  Ramsay,  13  111.  619;  Shu-  *  Hall  v.  Williams,   6  Pick.   232; 

nickv.  Thompson,  25  111.  App.  619.  McRaex.  Mattoon,  13  Pick.  53:  Bis- 

*  Bank  v.  Harding,  5  Ohio  546;  sell  v.  Briggs,  9  Mass.  462;  Wright 


488  DEBT. 

a  statute  for  a  penalty,  nil  dehet  is  the  best  general  issue,  but 
not  guilty  is  admissible.'  In  debt  for  rent  by  the  lessor 
against  the  assignee  of  the  lessee,  a  plea  of  nil  dehet  puts  in 
issue  the  whole  declaration.'' 

Where  a  deed  is  only  inducement  to  the  action  and  matter 
of  fact  the  foundation  of  it,  this  plea  may  properly  be  pleaded, 
as  in  debt  for  rent  due  on  an  indenture  of  lease,  though  the 
plaintiff  has  declared  setting  out  the  indenture;  j'^et  as  the  fact 
of  the  subsequent  occupation  gives  the  right  to  the  sum 
demanded,  and  is  the  foundation  of  the  action,  and  the  lease  is 
mere  inducement,  the  defendant  may  plead  oiil  dehet,  and  for 
the  same  reason  this  plea  is  proper  in  debt  for  an  escape,  or  on 
a  devastavit  against  an  executor,  the  judgment  in  these  cases 
being  merely  inducement,  and  the  escape  or  devastavit  the 
foundation  of  the  action.  But  when  the  deed  is  the  founda- 
tion of  the  action,  although  extrinsic  facts  are  mixed  with  it, 
the  defendant  must  plead  7ion  est  factum,  and  nil  dehet  is  not 
a  sufficient  plea,  as  in  debt  for  a  penalty  on  articles  of  agree- 
ment, or  on  a  bond,  setting  out  the  condition  and  breach,  or  on 
a  bail  bond.* 

iVo/i  assumpsit  is  not  a  proper  plea  in  an  action  of  debt.* 
The  plea  of  nil  debet,  in  debt  on  a  specialty,  is  not  a  nullity, 
but  is  bad  on  demurrer;*  and  a  judgment  over  such  a  plea  un- 
answered is  erroneous."  This  plea,  like  the  general  issue  in 
assumpsit,  puts  the  plaintiff  on  proof  of  the  whole  of  the  alle- 
gations, in  the  declaration.^  The  language  of  the  plea  puts  in 
issue  the  existence  of  the  debt  at  the  time  of  bringing  the 
action;  and  consequently  any  matter  may  be  given  in  evidence, 

T.  Boynton,  37  N.  H.  9;  Judkins  v.  Love  v.  Kidivell,  4  Blackf.  553;  Edkle 

Ins.  Co.,  37  N.  H.  470;  see  Ins.  Co.  v.    Oliver,    5    Blackf,  3;    Smith  v, 

V.  Barker,  55  111.  241.  Steivart,   6    Blackf.    162;    Shook  v. 

^  Stilson  V.    Tobey,   2  Mass.   521:  State,   6   Ind.  113;   1    Chit.  Pi.  424; 

Burnham  v.  Webster,  5  Mass.  266;  1  Shunick  v.  Thompson,  25  111.  App. 

Chit.  PI.  428.  619. 

■^  Trustees  v.  Clovgh,  8  N.  H.  22.  «  Tate  v.  Wymond,  7  Blackf.  240; 

3  1   Chit.    PL    423,   424;  Stephen's  Wheeler  v.  Curtis,  11  Wend.  653. 

PI,  174,  ?i.  '' Jansen   v.  Ostrander,  1    Cowen 

*  Harloio  v.    Bosivell,   15  111.   56;  670;   Broum  v.  Littlefield,  7  Wend. 

Lancaster  v.  Lancaster,  29  111.  App.  456;    Gavin  v.  Annan,  2  Cal.  494;  1 

510.  Chit.  PI.  422-424. 

i"  Trimble  v.  State,  4  Blackf.  435; 


DEBT.  489 

under  such  plea,  which  shows  that  nothing  was  due  at  that 
time,  as  payment,  or  release,  or  other  matter  in  discharge  of 
the  debt' 

Where  nil  debet  is  pleaded  to  an  action  on  a  bond,  etc.,  the 
plaintiff  ought  to  demur,  for  if  he  does  not  he  will  have  to 
prove  every  allegation  in  his  declaration,  and  the  defendant 
will  be  at  liberty  to  avail  himself  of  any  ground  of  defense 
which  in  general  may  be  taken  advantage  of  under  this  plea.* 

No.  261.     Plea  of  non  est  factum. 

{Title  of  court,  etc.,  as  in  last  precedent.)  And  the  defendant,  by  G.  H., 
his  attorney,  comes  and  defends  the  wrong  and  injury,  when,  etc.,  and 
says  that  the  supposed  writing  obligatory  {or  "  deed,"  or  •'  indenture,"  e^c.,) 
in  the  said  declaration  mentioned  is  not  his  deed;  and  of  this  he  puts  him- 
self upon  the  country,  etc. 

{To put  the  plaintiff  ujwn  proof  of  the  execution  of  the  instrument,  add 
affidavit  as  in  No.  137,  ante,  which  see.) 

In  debt  on  bond,  or  other  specialty,  when  the  deed  is  the 
foundation  of  the  action,  the  plea  of  non  est  factum  is  proper, 
either  when  the  plaintiff's  profert  can  not  be  proved  as  stated, 
or  the  deed  was  not  executed,  or  varies  from  the  declaration/ 

This  plea  may  be  pleaded  in  Illinois,  notwithstanding  it  is 
not  verified  by  affidavit,*  though  by  the  statute  a  defendant 
can  not  deny  on  the  trial  the  execution  of  any  instrument  in 
writing,  whether  sealed  or  not,  upon  which  any  action  is 
brought,  unless  his  plea  is  verified  b}'-  affidavit.^  A  plea  so 
verified  puts  the  plaintiff  upon  proof  of  the  execution  of  the 
instrument  sued  on,  but  the  affidavit  is  not  evidence  for  the 
defendant." 

^LindsY.  Gardner,  1  Cranch  313;  Curtis,  1798;  Rev.  Stat.  (1895)  1159; 

Gavin  v.  Annan,  2  Cal.  494;   1  Chit.  Flax  Co.  v.  Beebe,  48  111.    138;    see 

PI.  423.  Pritchett    v.   Peojile,   1   Gilm.   525; 

'^  Kilgourv.  Drain.  Comm.,  Ill  m.  Peoples.  Yeazel,   84  111.    538;  Her- 

343;  3Ii,x  v.  Peojjle,  86111.  339;  1  Chit.  rick  v.  Stoartwout,  73  111.  340;  Kit- 

Pl.  424;    Caldwell   v.  Richmond,  64  ner  v.  Whitlock,  88  111.  513;  Delaliay 

111.  30,  V.  Clement,  2  Scam.  575:  Gaddy  v. 

»  1  Chit.  PL  424;  Gardner  v.  Gard-  McClcave,  59  111.  183;  Martin  v.  Cut- 

ner,  10  Johns.  47.  ver,  87  111.  49;  Mix  v.  Peoj)le.  92  111. 

■*  Russell  V.  Hamilton,  2  Scam.  56;  549;  Wallace  v.  Wallace,  8  Bradw. 

see  Melvin  v.    Hodges,   71  111.    423;  69:  Baird  v.  Be.st,  13  Bradw.  385. 

Schroeder  v.  Harvey,  75  III.  638.  ^  Walter   v.    Tru.stees.    12    111.   64; 

5  Rev.  Stat.  (1893)  1075;  2  Starr  &  Hunter  v,  Harris,  131  111.  483. 


400  DEBT. 

A  defendant  may  give  in  evidence,  under  the  plea  of  non 
est  factum,  that  the  deed  was  delivered  to  a  third  person  as  an 
escrow,  (though  it  is  more  usual  to  plead  the  fact,) '  or  that  it 
was  void  at  common  law  ah  initio? 

The  plea  of  non  est  factum  only  denies  the  giving  of  the 
deed;  and  it  is  not  necessary  for  the  plaintiff,  on  the  issue 
presented  by  that  plea,  to  prove  the  averments  of  other  matters 
or  the  breaches  contained  in  his  declaration,  as  the  plea  ad- 
mits them.^  A  notice  of  special  matter  of  defense  may  be  given 
with  the  plea  of  non  est  factum.^ 

If  this  plea  is  pleaded,  although  not  verified  by  affidavit,  it 
requires  the  instrument  to  be  produced  on  the  trial,'  or  at  least 
to  be  accounted  for.  See  the  observations  under  the  plea  of 
non  est  factum^  in  covenant,  ante  (No.  155). 

No.  2G2.    Non  est  factum    and  nil    debet,  to  ^bt  on  bond  and  simple 

contract. 

(Title  of  court,  etc. ,  as  in  No.  260,  ante.)  And  the  defendant,  by  G.  H. ,  his 
attorney,  comes  and  defends  the  wrong  and  injury,  when,  etc.,  and  as  to 
the  said  first  count  of  the  said  declaration,  says  that  the  supposed  writing 
obligatory  therein  mentioned  is  not  his  deed:  And  of  this  he  puts  himself 
upon  the  country,  etc. 

And  as  to  the  said  second,  third,  fourth  and  last  counts  of  the  said  declarar 
tion.  the  defendant  says  that  he  does  not  owe  the  said  sums  of  money 
therein  mentioned,  or  any  or  either  of  them,  or  any  part  thereof,  in  man- 
ner and  form  as  the  plaintiff  has  above  complained  against  him:  And  of 
this  the  defendant  puts  liimself  upon  the  country,  etc. 

No.  263.    Plea  of  non  est  factum,  after  craving  oyer,  etc. 

{Title  of  court,  etc.,  as  in  No.  260,  ante.)  And  the  defendant,  by  G.  H., 
his  attorney,  comes  and  defends  the  wrong  and  injury,  when,  etc. ,  and  craves 
oyer  of  the  supposed  writing  obligatory  in  the  said  declaration  mentioned, 
and  it  is  read  to  him,  etc.     He  also  craves  oyer  of  the  condition  of  the  said 

'  4  Esp.  225;  6  Mod.  217;    1  Salk.  v.  Executors,  5  Ohio   169;  Granger 

274;  1  Chit.  PI.  424;  see  Governor  v.  v.  Granger,  6  Ohio  35;  1  Chit.  PI. 

Lagow,  43  111.  134.  428;  see  Governor  v.  Lagoiv,  43  111. 

2  Phelps  V.  Decker,  10  Mass.  267;  134. 

Anthony  v.  Wilson,  14  Pick.  303;  1  *  Beach  v.  Springer,  4  Wend.  519; 

Chit  PL  424.  Granger  v.  Granger,  6  Ohio  35;  Bey- 

^  Legg  v.  Robinson,  7  Wend.  194;  nolds  v.  Executors,  5  Ohio  340. 

Gardner  v.    Gardner,  10  Johns.  47;  *  Fosdick  v.   Starbuck,  4  Blackf. 

Utter  \.  Vance,  7  Blackf.  514;  Cour-  417;  see  1  Chit.  PI.  424. 
cier  V.  Graham,  1  Ohio  830;  Reynolds 


DEBT.  49  J 

supposed  writing  obligatory,  and  it  is  read  to  him  in  these  words : 
"  Whereas  (here  set  forth,  verbatim,  the  recitals,  if  any  and  the  condition) 
Which  being  read  and  heard,  the  defendant  says  that  the  said  supposed 
writing  obhgatory  is  not  his  deed;  and  of  this  he  puts  himself  upon  the 
country,  etc. 

If  the  action  is  upon  an  indenture,  etc.,  say — 

"  Craves  oyer  of  the  supposed  indenture  {or  as  the  case  may  be)  in  the  said 
declaration  mentioned,  and  it  is  read  to  him  in  these  words:  {setting  forth 
the  instrument,  verbatim.)  Which  being  read  and  heard,  the  defendant 
says,"  etc. 

It  is  not  usual  to  plead  nan  est  factum,  setting  out  the  condi- 
tion, or  the  indenture,  etc.,  on  oyer,  except  where  the  defend- 
ant pleads  double.'  The  practical  use  of  demanding  oyer,  in 
pleading,  is  to  enable  the  party  demanding  it  to  recite  upon 
the  record  the  instrument  pleaded  against  hira,  and  thus  avail 
himself,  upon  the  face  of  the  record,  of  anything  in  the  writing 
which  may  aid  him  in  meeting  the  allegations  of  his  adver- 
sary— a  writing  thus  set  out  on  oyer  being  considered  as  a  part 
of  the  last  pleading  of  the  opposite  party.  Thus  to  debt 
on  bond,  the  defendant  having  recited  the  condition,  on  oyer, 
is  enabled  to  avail  himself  of  it,  by  pleading  or  demurring,  as 
his  case  may  require.  Oyer  is  of  course  unnecessary  when  the 
instrument  is  truly  set  out,  in  haec  verha,  in  the  previous  plead- 
ing. 

On  the  subject  of  oyer,  see  1  Chit.  PI.  369  to  375;  Gould's 
PI.,  chap.  8,  sees.  32  to  64;  Andrews'  Steph.  PI.,  144  to  159; 
Eev.  Stat.  (1895)  1157. 

Special  non  est  factum. — In  actions  founded  on  deeds,  the 
defendant  may,  instead  of  pleading  non  est  factum,  in  common 
form,  allege  any  special  matter,  which  admiU  the  execution  of 
the  writing  in  question,  but  which  shows,  nevertheless,  that  it 
is  not  in  law  his  deed;  and  may  conclude  with  non  est  factum: 
As  that  the  writing  was  delivered  to  J.  S.  as  an  escrow,  to  be 
delivered  over,  on  a  certain  condition,  which  has  not  been 
complied  with,  "  and  so  is  not  his  act :  "  Or,  that  the  writing 
lias  heen  altered  by  the  plaintiff,  since  its  delivery,  "  and  so  is 
not  his  act : "  Or,  that  the  defendant  was,  at  the  time  of  mak- 
ing the  writing,  -a.  feme  cover't;  "  and  so  it  is  not  her  act."  In 
a  plea  of  this  kind,  the  latter  part  (the  nvn  est  factum)  is  merely 

'  3  Chit.  PI.  953,  954,  notes. 


492  DEBT. 

an  inference  from  the  special  matter  which  precedes  it :  The 
Avord  "  so  "  being  used  in  an  illative  sense,  and  conveying  the 
same  meaning  as  the  word  "  therefore."  The  special  matter 
then  merely  shows  how  and  why  the  instrument  is  not  the  de- 
fendant's act;  and  on  the  trial  of  the  issue,  the  evidence  on 
both  sides  is  confined  to  the  special  matter  alleged.' 

Duress,  infancy,  or  other  matter  which  renders  the  deed 
merely  voidable,  can  not  properly  be  pleaded  in  this  form.' 

The  effect  of  a  demurrer  to  a  special  no7i  est  factum  is  strictly 
analogous  to  a  demurrer  to  evidence;  the  question  of  law 
being,  on  a  demurrer  to  such  plea,  whether  the  facts  therein 
specially  set  forth  are  sufficient  in  law  to  maintain  the  general 
issue  (with  which  it  concludes)  in  favor  of  the  party  pleading 
them.^ 

The  better  authority  appears  to  be,  that  this  plea  should 
conclude  to  the  country;  *  though  according  to  some  opinions 
it  may  and  should  conclude  with  a  verification.  But  a  con- 
clusion with  a  verification  "  would  alter  the  essential  character 
of  the  plea,  and  convert  it  into  a  mere  special  plea  amounting 
to  the  general  isstie,yf\i\ch.  is,  regularly,  inadmissible."* 

No.  £64.    Plea  that  bond  was  delivered  as  an  escroic. 

(First  plea,  non  est  factum,  as  ante,  No.  261;  second  plea,  onerari  non,  etc., 
as  in  next  form,  to  the  asterisk,  and  then  proceed :)  that  the  said  writing  in 
the  said  declaration  mentioned  was  made  by  the  defendant,  on,  etc.,  afore- 
said, to  secure  the  repayment  of  a  certain  sum  of  money  then  lent  by  the 
plaintiff  to  one  E.  F.,  and  was  delivered  by  the  defendant  to  one  G.  H.,  as 
an  escrow,  to  be  kept  by  him  on  this  special  condition,  that  is  to  say,  that 
(here  set  forth  the  condition,  according  to  the  facts,  in  this  manner — )  if 

the  said  E.  F.  should,  within  the  space  of months  then  next  following, 

secure  the  repayment  of  the  said  sum  of  money  to  the  plaintiff,  by  a  mort- 
gage on  a  certain  parcel  of  land  of  the  said  E.  F.,  situate,  etc.,  then  the  said 
writing  should  be  immediately  discharged,  annulled  and  held  for  nothing, 
and  redelivered  to  the  defendant;  but  that  in  default  of  the  said  E.  F.'s  so 
seciu-ing  the  repayment  of  the  said  sum  of  money  as  aforesaid,  then  the 
said  writing  of  the  defendant  should  stand  and  be  against  him  in  full  force. 

And  the  defendant  further  says,  that  within  the  space  of months  from 

the  time  of  the  making  and  delivering  of  the  said  writing  as  an  escrow  to 

1  Gould's  PL  312.  n.;  1  Id.  475;  Hinton  v.  Husband,  3 

2  7d.  300,  301,  314.  Scam.  187. 

3  Id.  314.  *  Gould's  PL  315;  see  Governor  v. 

4  Gould's  PL  314;  3  Chit.  PL  962,      Lagoio,  43  lU.  134. 


DEBT.  493 

the  said  G.  H.  as  aforesaid,  to  wit,  on,  etc.,  in,  etc.,  the  said  E.  F.  did 
secure  the  repayment  of  the  said  sum  of  money  to  the  plaintiff,  bj-  a  mort- 
gage upon  the  said  parcel  of  land,  which  said  mortgage  the  plaintiff  then 
and  there  accepted  and  received  as  a  security  for  the  repayment  of  the  said 
sum  of  money  so  by  him  lent  to  the  said  E.  F.  as  aforesaid;  whereby  the 
said  writing  became  and  was  wholly  discharged  and  annulled.  And  so  the 
defendant  says,  that  the  said  writing  is  not  his  deed;  and  of  this  he  puts 
himself  upon  the  country,  etc. 

It  seems  that  the  plea  must  show  to  whom  the  bond  was 
delivered; '  and  it  is  no  escrow  if  delivered  to  the  obligee.^ 

An  escrow  is  a  deed  conditionally  delivered  to  a  stranger, 
and  not  to  the  obligee  or  grantee  himself,  to  be  held  until  a 
certain  condition  shall  be  performed,  and  then  to  be  delivered 
to  the  obligee  or  grantee.  Until  the  condition  is  performed, 
and  the  deed  delivered  over,  it  does  not  take  effect.'  A  re- 
lation back  to  the  first  delivery,  so  as  to  give  the  deed  effect 
from  that  time,  is,  however,  allowed  in  cases  where  necessary 
to  render  the  deed  valid — as  where  2,  feme  sole  makes  a  deed, 
and  delivers  it  as  an  escrow,  and  then  marries  before  the 
second  delivery.* 

As  has  been  already  observed,  the  delivery  of  a  deed  as  an 
escrow  may  be  given  in  evidence  under  the  plea  of  non  est 
factum,  though  it  is  more  usual  to  plead  it.* 

No.  S65.    Onerari  non. 

{TVhen  pleaded  as  a  second  or  subsequent  plea,  commence  thus:)  And  for 
a  furtlier  plea  in  this  behalf,  the  defendant  says  that  he  ought  not  to  be 
charged  with  the  said  debt  by  virtue  of  the  said  supposed  writing  obliga- 
tory, {or  "  indenture,"  etc.,  or  "  the  said  writing,")  because  he  says,  (*)  that 
{here  state  the  subject-matter  of  the  defense,  and  conclude  as  foUoirs:) 
And  this  the  defendant  is  ready  to  verify;  wherefore  he  prays  judgment  if 
he  ought  to  be  charged  with  the  said  debt  by  virtue  of  the  said  supposed 
writing  obligatory  {or   "  indenture,"  etc.) 

'  5  Bac.  Abr.  160,  Oblig.  C.  Catlin  v.    Jackson.     8    Johns.  520; 

2  Hob.  246;  Ventr.  9;  2  Stark.  Ev.  Furness  v.  Williams,  11  111.  229; 
271;  Foley  V.  Coicgill,  5  Blackf.  18;  Foy  v.  Blackstone,  31  111.  538;  Price 
Moss  v.  Riddle,  2  Pet.  C.  Rep.  277;  v.  R.  R.  Co.,  34  111.  13;  Leiter  v. 
see  Neely  v.  Lewis,  5  Gilm.  31;  Stoiie  Pike,  127  111.  326. 

V.  Duvall,  77  111.  475;  Land  Co.  v.  "  2  Bl.  Com.  .307;  2  Bouv.  Inst,  n., 

Peek,  112  111,  231;  Weber  v.  Chris-  2024;  4  Kent  Com.  446. 

ten,  121  111.  94.  "1  Chit.  PI.  424;  see  Governor  v. 

3  Jackson  v.  Catlin,  2  Johns,  248;  Lagow,  43  111.  134. 


404  DEBT. 

"Where  tlie  validity  of  the  deed  is  disputed,  or  where  an  heir 
pleads  riensper  descent^  the  defendant  should  sa}"  oiverari  non 
dehet^  (as'above,)  and  actionem  non;  and  the  plea  should  de- 
scribe the  deed  as  a  writing,  or  supposed  writing  obligatory, 
(or  "indenture,  etc.,)  and  should  not  admit  that  it  is  a  deed.' 

No.  266.     Plea  of  tender,  to  debt  on  simple  contract— Wi\  debet  as  to  part, 
and  tender  as  to  residue. 

(Title  of  court,  etc.,  as  in  No.  260,  ante.)  And  the  defendant,  by  G.  H., 
his  attorney",  comes  and  defends  the  wrong  and  injury,  when.  etc. ,  and  as 
to  the  several  sums  of  money  in  the  said  declaration  mentioned,  and  thereby 

demanded,  except  as  to  the  sum  of dollars,  {the  sum  tendered,)  parcel 

thereof,  says  that  he  does  not  owe  the  same,  or  any  part  thereof,  to  the 
plaintiff,  in  manner  and  form  as  the  plaintiff  has  above  complained  against 
him,  the  defendant:    And  of  this  he  puts  himself  upon  the  country,  etc. 

And  as  to  the  said  sum  of dollars,  parcel,  etc.,  the  defendant  says 

that  the  plaintiff  ought  not  to  have  his  aforesaid  action  against  him,  the 
defendant,  to  recover  any  damages  by  reason  of  the  non-payment  of  that 
sum  of  money,  because  he  says,  that  he  was  when  the  same  became  due, 
and  from  thence  hitherto  has  been,  and  still  is,  ready  to  pay  to  the  plaintiff 

the  said  sum  of doUai-s,  parcel,  etc  ,  to  wit,  in  the  cjunty  aforesaid;  and 

that  after  the  same  became  due,  and  before  the  commencement  of  this  suit, 
to  wit,  on,  etc.,  the  defendant  was  there  ready  and  willing,  and  tendered 

and  offered,  to  pay  to  the  plaintiff  the  said  sum  of dollars,  parcel,  etc., 

to  receive  which  of  the  defendant,  he,  the  plaintiff,  then  and  there  wholly 
refused;  and  the  defendant  now  brings  the  said  sum  of  money,  so  tendered, 
into  the  court  here,  ready  to  be  paid  to  the  plaintiff,  if  he  will  accept  the 
same.  And  this  the  defendant  is  ready,  to  verify;  wherefore  he  prays  judg- 
ment if  the  plaintiff  ought  to  have  his  aforesaid  action  to  recover  any  dam- 
ages by  reason  of  the  non-payment  of  the  said  sum  of dollars,  parcel, 

etc. 

If  the  money  has  already  been  paid  into  court,  then  instead 
of  alleging  the  bringing  in  thereof,  as  in  the  above  form,  say 
— "  and  the  defendant  avers  that  he  has  paid  the  said  sum  of 

money,  so  tendered,  into  the  said court  of,  etc.,  ready  to 

be  paid,"  etc.  A  tender  must  be  pleaded.  See  the  form  No. 
121,  ante,  and  the  observations  thereunder. 

No.  267.     Plea  of  nul  tiel  record. 

{Title  of  court,  He,  as  in, No.  260,  ante.)  And  the  defendant,  by  G.  H., 
his  attorney,  comes  and   defends  the  wrong  and  injury,  when,  etc.,  and 

1  1  Chit.  PI.  471;  3  Chit.  PI.  955,  n. 


DEBT.  495 

says  that  there  is  not  any  record  of  the  supposed  recovery  in  the  said  dec- 
laration mentioned,  remaining  in  the  said court  of,  etc.,  in  manner 

and  form  as  the  plaintiff  has  above  in  his  said  declaration  alleged  :  And 
this  the  defendant  is  ready  to  verify;  wherefore  he  prays  judgment  if  the 
plaintiff  ought  to  have  his  aforesaid  action  against  him,  etc. 

It  seems  the  words,  "  and  this  defendant  is  ready  to  verify," 
are  not  necessary.' 

It  is  the  proper  practice  for  the  court  to  determine  the  issue 
on  the  plea,  by  an  inspection  of  the  transcript  of  the  record; 
and  if  this  fails  to  show  jurisdiction  of  the  person  of  the 
defendant,  it  can  not  be  aided  by  other  evidence.'' 

The  plea  of  nul  tiel  record  draws  nothing  in  question  but  the 
existence  of  the  record.^  The  party  can  not,  therefore,  under 
such  plea,  set  up,  in  contradiction  of  the  record,  that  he 
was  not  served  with  process,  or  that  he  did  not  appear  by  at- 
torney.* But  where  the  record  shows  an  appearance  by  attor- 
ney, the  defendant  may  plead  and  prove  that  the  attorney  had 
no  authority  to  appear  for  him." 

It  is  held  that  the  defense  that  a  judgment  of  another  state, 
an  which  an  action  is  brought,  was  obtained  by  fraud,  is  not 
available  at  law,  and  that  the  proper  course  is  to  seek  relief 
by  bill  in  chancery,  impeaching  the  judgment  for  that  cause;" 
but  this  doctrine  is  denied.' 

A  variance  between  the  record  declared  on  and  the  one  pro- 
duced in  evidence,  can  be  taken  advantage  of  by  a  plea  of  nul 
tid  record." 

>  3  Chit.  PI.  995,  n;  Com.  Dig.  PI.  Bimeler  v.    Dairson,   4  Scam.  536; 

E.  33.  Hall  V.  Williams,  6  Pick.  232:  Shum- 

^  Kimball  Y.  Merrick,  20  Ark.  12;  way  v.  Stillman,  6  ^Y'md.  4A1. 

Pitt  V.   Knight,   1   Saund.  92.  n.  3;  *  Anderson  v.  Anderson,   8  Ohio 

Riley  v.  Eiley,  1  Spencer  (20  N.  J.)  108;  Story's  Eq.  PI.,  sec.  426;  see.4»i- 

114.  bier  v.  Whipple,  139  111.  311. 

^  Anderson  \.  Anderson,   8  Ohio  ''  Bimeler  v.  Dawson,  \  Scam.  ^ZQ, 

108.  and  cases  cited;    Welch  v.  Sykes,  3 

*  Bennett  V.  Morley,   10  Ohio  100;  Gilm.     197;    Borden    v.   Fitch,    15 

Westervelt  v.  Leivis,  2  McLean  511;  Johns.  121;    Andretvs  v.  Montgom- 

Hally.  Williams,  QFick.2d2;  Shum-  ery,    19  Johns.  162;    see  Ambler  \. 

toay   V.    Stillman,    6    Wend.     447;  Whipple,  139  111.  311. 

Welch  v.  Sykes,  3  Gilm.  197;    Rust  «2  Paine'  C.  C.  R.  209;  Randolph 

V.  Frothingham,  Breese  331.  v.  Keiler,  21  Missouri  557:  Smith  v. 

^  Welch    v.   Syhcs,    3  GUm.    197;  .Br«s/i.  8  Johns.  83;  Stra.  1721;   Pitt 


496  DEBT. 

The  plea  of  nul  tiel  record,  in  scire  facias  on  a  mortgage, 
only  puts  in  issue  the  execution  and  registry  of  such  mort- 
gage.' This  plea  is  improper  in  an  action  of  debt  on  an  ap- 
peal '  or  a  replevin  bond." 

In  general,  the  conclusion  of  a  plea  of  nul  tiel  record  to  the 
country,  is  wrong;  but  such  defect  can  only  be  taken  advan- 
tage of  by  a  special  demurrer." 

It  was  held  in  England  that  the  plea  of  md  tiel  record, 
pleaded  to  an  Irish  judgment,  must  conclude  to  the  country, 
for  though  since  the  union  of  England  and  Ireland  such  judg- 
ment was  a  record,  yet  it  was  only  provable  by  an  examined 
copy  on  oath,  the  verity  of  which  was  only  triable  by  a  jury.^ 

And  in  the  case  of  Baldwin  v.  Hale,  17  Johns.  (N".  Y.)  272,  it 
was  held  that  a  circuit  court  of  the  United  States,  in  relation 
to  a  state  court,  was  to  be  regarded  as  a  court  of  another  gov- 
ernment, and  its  records,  therefore,  must  be  considered  as  for- 
eign records,  and  their  verity  must  be  tried  by  a  jury.  But 
under  the  act  of  congress  which  provides  for  the  manner  of 
proving  the  records  of  the  courts  of  the  various  states,  by  the 
attestation  of  the  clerk  and  the  seal  of  the  court  annexed,  with 
the  certificate  of  the  judge,®  the  proving  of  such  records  by 
examined  copy  is  not  necessary,  and  the  issue  of  nul  tiel  record 
is  tried  by  the  court  by  an  inspection  of  the  record. 

No.  268.    Replication  to  plea  of  nul  tiel  record. 

In  the Court. 

*  term,  18 — . 

A.  B.  ) 
vs.     [  Debt. 
C.  D.  )      And  the  plaintiff,  as  to  the  plea  of  the  defendant  by  him  first 
above  pleaded,  says  that  he,  the  plaintiff,  by  reason  of  anything  in  that  plea 
alleged,  ought  not  to  be  barred  from  having  his  aforesaid  action,  because 

V.  Knight,  1  Saund.  92,  n.  3;    Giles  ^Steele   v.  Hanna,  8  Blackf.  326; 

V.  Shaiv,  Breese  125;  Giles  v.  Shaw,  Co.  Lit.  117,  b;  see  Chit.  PI.  475, 476. 

Breese  219.  *  Colliiis  v.  Mathew,  5  East  473; 

'  Woodbury   v.    Manlove,   14  111.  see  1  Chit.  PI.  475. 

213.  «  Rev.  Stat.  (1893)  86;  Eev.   Stat. 

*  Arnott  v.  Friel,  50  HI.  174;  Her-  (1895)  86;  1  Starr  &  Curtis  1094;  see 
rickv.  Sicarticout,'72  III.  S'iO;  Mix  Mills  v.  Duryea,  7  Cranch  481; 
V.  People,  86  111.  329.  Hampton  v.   MeConnel,  3  Wheat. 

*  Tedwick  v.  Wells,  59  111.  App.  234;  Bimeler  v.  Dawson,  4  Scam. 
657.  586. 


DEBT.  497 

he  says,  that  there  is  such  record  of  the  said  recovery  remaining  in  the  said 

court  of,  etc.,  as  he  has  above  in  his  said  declaration  alleged.     And 

tliis  the  plaintiff  is  ready  to  verify  by  the  said  record,  etc.,  and  he  prays 
that  the  same  may  be  seen  and  inspected  by  the  court  here,  etc. 

No.  269.     Plea  of  duress — Menace  to  kill. 

(First  plea,  non  est  factum,  as  ante,  No.  261;  second  plea,  onerari  non, 
etc.,  as  in  No.  265,  ante,  fo  the  asterisk,  and  then  proceed— )  that  the 
plaintiff,  just  before  the  making  of  the  said  writing  in  the  said  declaration 
mentioned,  to  wit,  on,  etc.,  in,  etc.,  threatened  the  life  of  the  defendant, 
unless  he,  the  defendant,  would  make,  seal  and  deliver  the  writing  afore- 
said, and  the  defendant  did  thereupon  then  and  there,  by  reason  of  such 
threats,  and  in  fear  thereof,  make,  seal  and  deliver  the  said  writing.  And 
this,  etc.  (concluding  with  a  verification,  as  in  No.  265,  ante). 

No.  270.    Replication  to  plea  of  duress,  No.  269. 

(Similiter  to  non  est  factum,  as  ante.  No.  10.)  And  the  plaintiff,  as  to  the 
plea  of  the  defendant  by  him  secondly  above  pleaded,  says  that  he,  the 
plaintiff,  by  reason  of  anything  in  that  plea  alleged,  ought  not  to  be  barred 
from  having  his  aforesaid  action,  because  he  says,  that  the  defendant,  of  his 
own  free  will,  made,  sealed  and  delivered  to  the  plaintiff  the  said  writing 
obligatory,  and  not  by  reason  of  the  supposed  threats  in  the  said  second  plea 
naentioned,  or  in  fear  thereof,  in  manner  and  form  as  the  defendant  has 
above  in  that  plea  alleged.  And  this  the  plaintiff  prays  may  be  inquired  of 
by  the  country,  etc 

The  plea  may  alleo^e  a  battery  and  menace  of  further  battery, 
or  a  battery  and  fear  of  mayhem,  or  duress  of  imprisonment, 
etc.     See  the  precedents.     3  Chit.  Fl.  9(54,  965. 

Fear  of  unlawful  imprisonment  will  constitute  a  case  of 
duress  j96r  w.inas  and  avoid  a  contract.' 

The  general  rule  is,  that  the  imprisonment  or  duress  must 
either  be  tortious,  and  without  authority,  or  be  an  abuse  of 
lawful  authority  to  arrest,  to  constitute  duress  by  imprison- 
ment.^ 

See  the  Illinois  cases  noted  below,  on  this  subject.' 

•  Co.    Lit.   253,    6;    2    Inst    483;  39  111.  243;  Haskin  v.  Raskin,  41  111. 

Foshay  v.  Ferguson,  5  Hill  (N.  Y.)  197;  Stover  v.  Mitchell.  45  111.  213. 

154.  ^Taylor    v.    Cottrell,    16    111.    93; 

«  2  Kent's  Com.  565;   Watkins  v.  Plummer  v.  People,  16  111.  358;  Bane 

Baird,Q  Mass.  511;    Taylor  v.  Cot-  x.Detrick,  52  111.  20;  Thurman    v. 

trell,  16    111.  93;    see    Plummer    v.  5!trf,  53  111.  129;  Gingrich  x.  People, 

People,    16    111.    358;    Gingrich   v.  34  111.  448;  Huggins  v.  People,  39  111. 

People,Ul\\.U9;Hugginsv. People,  242;  Haskin  v.  Haskin,  A\  111.  197; 
82 


408  DEBT. 

No.  £71.    Plea  of  set-off ,  to  debt  on  a  money  bond  with  a  penalty. 

{If  pleaded  as  a  first  plea,  commence — after  the  entitling—  "  And  the  de- 
fendant, by  G.  H.,  his  attorney,  conies  and  defends,  etc.,  when,  etc.,  and 
says  that  the  plaintiff  ought  not,"  etc.  If  as  a  second  or  Huhsequent  plea., 
commence  thus:)  And  for  a  further  plea  in  this  behalf,  the  defendant  says 
that  the  plaintiff  ought  not  to  have  his  aforesaid  action  against  him,  the  de- 
fendant, because  he  says,(*)  that  at  the  time  of  the  commencement  of  this 
suit  there  was  due  from  the  defendant  to  the  plaintiff,  upon  the  said  writ- 
ing obligatory,  by  the  said  condition  thereof,  for  the  principal  and  interest 
in  the  said  condition  mentioned,  the  sum  of dollars:  And  the  defend- 
ant further  says  that  the  plaintiff  was  befoi'e  and  at  the  time  of  the  com- 
mencement of  this  suit,  and  still  is,  indebted  to  him,  the  defendant,  in  a 
much  larger  sum  of  money  than  the  said  sum  so  due  from  the  defendant  to 
the  plaintiff  upon  the  said  writing  obligatory,  that  is  to  say,  in  the  sum  of 

dollars;  for  {here state  the  sidy'ect-matter  of  the  set-off^)  which  said  sum 

of  money  so  due  from  the  plaintiff  to  the  defendant,  as  aforesaid,  or  so 
much  thereof  as  shall  be  necessary  in  this  behalf,  the  defendant  is  ready 
and  willing,  and  offers,  to  set  off  and  allow  against  the  said  sum  of  money 
so  remaining  due  by  the  said  condition  of  the  said  writing  obligatory,  ac- 
cording to  the  form  of  the  statute,  etc.  And  this  the  defendant  is  ready  to 
verify;  wherefore  he  prays  judgment  if  the  plaintiff  ought  to  have  his 
aforesaid  action,  etc. 

See  form  105,  ante,  and  the  observations  thereunder.  In  the 
above  plea,  and  the  next  following,  oyer  should  be  craved,  (as 
in  No.  263,)  if  the  declaration  does  not  set  forth  the  condition 
and  breach.  But  if  non  est  factum,  cravino^  oyer  (No.  262)  is 
pleaded,  then  it  is  not  necessary  to  again  demand  oyer  in  a 
subsequent  plea. 

No.  272.    Plea  of  payment— To  debt  on  bond  (solvit  ad  diem). 

{As  in  last  precedent  to  the  asterisk,  and  then  proceed — )  that  on  the  said 
day  of,  etc. ,  in  the  said  condition  of  the  said  writing  obligatory  men- 
tioned, he,  the  defendant,  paid  to  the  plaintiff  the  said  sum  of dollars,  in 

the  said  condition  mentioned,  together  with  all  interest  then  due  thereon, 
according  to  the  form  and  effect  of  the  said  condition,  to  wit,  in  the  county 
aforesaid:  And  this,  etc.  {concluding  with  a  verification,  as  in  last  pre- 
cedent.) 

Stoverv.  Mitchell,  45  111.  213;  Schom-  Bank,  96 111.  301;  Willittsv.  Willitts, 

mer  v.  Farivell,  56   111.  542;  Swan-  104  111.  122;    Brower  v.   Callender, 

ston  V.  Ijajns.  63  111.  165;  Peacock  v.  105  111.  88;  Overstreet  v.  Dunlop,  56 

People,  83   111.   331;    R.  R.  Co.  v.  III.  App.  486;  Lamson  y.  Boyde^i,  57 

Thomas,  85    111.   464;    Compton    v.  111.  App.  232. 


DEBT.  499 

If  payment  after  the  day  is  pleaded,  {solvit  post  diem,) 
then  say  that  "  after  the  said day  of,  etc.,  in  the  said  con- 
dition mentioned,  and  before  the  commencement  of  this  suit, 
to  wit,  on  etc.,  he,  the  defendant,  paid,"  etc.;  and  omit  the 
words  ''  according  to  the  form  and  effect,"  etc. 

No.  273.     Plea  of  failure  of  consideration — To  debt  on  specialty.— [30  III.  329.] 

{First  plea,  non  est  factum,  as  ante,  No.  261.)  And  for  a  further  plea  in 
this  behalf,  the  defendants  say  that  the  plaintiffs  ought  not  to  have  their 
aforesaid  action  against  them,  the  defendants,  because  they  say,  that  the 
several  supposed  causes  of  action  in  the  said  declaration  mentioned  are  one 
and  the  same,  to  wit,  the  supposed  cause  of  action  in  the  said  first  count 
mentioned,  and  not  different  causes  of  action;  and  that  by  the  writing  in 
the  said  first  count  mentioned  the  plaintiffs  did  covenant  that  they  would, 
on  the  payment  of  the  money  mentioned  in  the  said  writing,  convey  to  the 
defendants  the  land  in  the  said  writing  mentioned,  and  in  and  by  their  deed 
of  conveyance  for  that  purpose  would  covenant  to  warrant  the  title  so  to  be 
convej^ed  to  the  defendants,  against  any  persons  claiming  by,  through  or 
under  the  patentee  of  the  said  land  :  And  the  defendants  aver  that  neither 
at  the  time  of  the  making  of  the  said  writing,  nor  at  any  time  since,  have 
the  plaintiffs  been  the  owners  of  the  patent  title  to  the  said  land,  or  had  any 
right  or  title  to  the  same  whatever  :  And  the  defendants  further  aver  that 
the  obtaining  of  the  title  to  the  said  land  was  the  only  consideration  and 
object  of  the  making  of  the  said  writing  by  the  defendants  as  aforesaid  : 
Wherefore,  by  reason  of  the  plaintiffs'  not  having  any  title  to  the  said  land, 
the  said  covenant  in  the  said  writing  mentioned  was  then  and  there  worth- 
less, and  the  consideration  of  the  said  writing  has  wholly  failed.  And  this 
the  defendants  are  ready  to  verify;  wherefore  they  pray  judgment,  etc. 

If  in  the  cause  in  which  this  plea  was  pleaded,  the  declara- 
tion fully  set  out  the  contract,  then  it  was  unnecessary  to 
allege  in  the  plea  that  the  contract  contained  a  certain  cove- 
nant, since  that  already  appeared  on  the  record;  and  if  the 
declaration  did  not  set  out  the  entire  writing,  so  as  to  show 
such  covenant,  then  the  plea  should  have  set  it  forth  on  oyer. 

No.  274.     Plea  of  performance  generally. 

(As  in  No.  271,  ante,  to  the  asterisk,  and  then  proceed—)  that  the  defend- 
ant did  from  time  to  time,  and  at  all  times,  after  the  making  of  the  said 
writing  obligatory  and  the  said  condition  thereof,  well  and  truly  keep  and 
perform  all  and  singular  the  matters  and  things  in  the  said  condition  speci- 
fied, on  his  part  to  be  kept  and  performed,  according  to  the  tenor  and  effect 
of  the  said  condition :  And  this,  etc.  {concluding  icith  a  verification,  as  in 
No.  271,  ante.) 


500  DEBT. 

As  to  this  plea,  see  the  remark  following  the  next  form. 

A  defendant  can  not  plead  performance  of  the  condition, 
without  praying  oyer,  and  setting  it  out  m  hcec  verha."^  But 
where  the  condition  is  already  set  out  in  the  declaration,  or 
in  a  previous  plea  craving  oyer,  it  is  unnecessary  to  again  de- 
mand oyer,  and  set  it  out. 

A  plea  of  performance  generally,  to  a  declaration  making 
negative  averments  in  assigning  breaches,  is  not  good.^ 

No.  275.     Plea  of  non  damnificatus. 

{As  in  No.  271,  ante,  to  the  asterisk,  and  tlien  proceed — )  that  the  plaintiff 
has  not,  at  any  time  since  the  making  of  the  said  writing  obligatory  and 
condition  thereof  hitherto,  been  in  anywise  damnified  by  reason  of  any 
matter  or  thing  in  the  said  condition  mentioned  :  And  this,  etc.  {conclud- 
ing with  a  verification,  as  in  No.  271,  ante.) 

As  to  craving  oyer,  see  the  remark  under  the  preceding 
form. 

It  would  seem  that  performance  generally,  and  non  damnifi- 
catus, should,  properly,  only  be  pleaded  where  the  condition 
and  breach  are  not  set  forth  in  the  declaration.  In  Illinois, 
it  is  provided  by  statute  that  "  in  actions  brought  on  penal 
bonds,  conditioned  for  the  performance  of  covenants,  the  plaint- 
iff siiall  set  out  the  conditions  thereof,  and  may  assign  as 
manv  breaches  as  he  may  think  fit; "  *  and  it  is  the  practice^ 
in  all  actions  on  bonds  with  conditions,  to  set  out  the  condi- 
tion, and  assign  the  breaches,  in  the  declaration,  instead  of 
making  such  assignment  in  the  replication,  as  was  the  practice 
in  England  in  many  cases.* 

A  plea  of  non  damnificatus  is  good  only  when  the  action  is 
upon  an  indemnity  bond.^  It  is  sufficient  when  the  condition 
of  the  bond  is  merely  to  indemnify,  but  when  the  condition 
is  for  the  performance  of  any  particular  act,  the  performance 
must  be  specially  pleaded.** 

'^Arlington  v.  Merrick,  2  Saund.  Patrick  v.  Eucker,  19  111.  428;  Foltz 

409,  n.  2;  3  Chit.  PI.  986,  n.  v.  Stevens,  54  111.  180. 

''State  V.  Levaele,  3  Blackf.  117;  *  See  3  Chit.  PI.  1177-1179. 

Mlv  V.   People,  86  111.  329;   Mix  v.  ^ State  v.   Gresham,   1   Ind.    190; 

People,  92  111.  549.  Sears    v.    Nagles,    18  Bradw.   547; 

^Kev,   Stat.  (1893),  1074;  Rev.  Stat.  Coombs  v.  Newlan,  4  Blackf.  120. 

(1895),  1158;  StaiT  &  Curtis  1786;  see  "  Cutler  v.  Southern,  1  Saund.  117, 


DEBT.  501 

No.  276.    Plea— To  debt  on  a  demise,  for  rent— No  rent  in  arrear.    {See  No. 

241,  ante.) 

(As  in  No.  271,  ante,  to  the  asterisk,  and  then  proceed—)  that  no  part  of 
the  said  rent  in  the  said  declaration  mentioned  is  in  arrear  or  unpaid,  in 
manner  and  form  as  the  plaintiff  has  above  in  his  said  declaration  alleged: 
And  of  this  the  defendant  puts  himself  upon  the  country,  etc. 

This  plea  may  be  pleaded  in  debt  for  rent,  though  not  in 
covenant.'  But  as  nil  debet  may  be  pleaded,  which  puts  in 
issue  the  whole  declaration,  there  would  seem  to  be  no  ad- 
vantage in  pleading  rien  en  arrere.  It  was  formerly  held  that 
this  plea  should  conclude  "  and  so  the  defendant  does  not  owe," 
etc.  {nil  dehet.) 

An  eviction  may  either  be  pleaded,  or  given  in  evidence 
upon  nil  dehet,  in  debt,  but  in  covenant  it  must  be  pleaded.' 

No.  277.     Plea — To  declaration  on  arbitration  bond— No  award  made. 

(As  in  No.  271,  ante,  to  the  asterisk,  and  then  proceed—)  that  the  said 
arbitrators  named  in  the  said  condition  did  not,  nor  did  any  two  of  them, 

on  or  before  the  said day  of,  etc.,  mentioned  in  the  said  condition, 

make  any  award  in  writing,  under  their  hands,  or  the  hands  of  any  two  of 
^lem,  (this  must  be  according  to  tlie  averment  in  the  declaration,)  of  and 
concerning  the  premises  in  the  said  condition  mentioned,  and  so  referred 
as  aforesaid,  ready  to  be  delivered  to  the  said  parties  in  difference:  And 
this  the  defendant  is  ready  to  verify;  wherefore  he  prays  judgment,  etc. 

See  observation  as  to  oyer,  under  JSIo.  271,  ante. 

No.  27S.    Plea  of  eviction  in  an  action  by  landlord  against  tenant. 

(First,  nil  debet,  and  second,  actio  non.) 

And  for  a  further  plea  in  this  behalf,  the  defendant  says  actio  non,  be- 
cause he  says  that  the  plaintiff,  after  the  making  of  the  said  lease,  and 
before  any  part  of  the  said  rent  in  the  said  declaration  mentioned  became 
due  and  payable,  the  plaintiff,  to  wit,  on,  etc.,  with  force  and  arms, 
etc.,  entered  into  and  upon  the  said  demised  premises,  and  then  and  there 
ejected,  expelled,  put  out.  and  amoved  the  defendant  from  the  possession 
thereof,  and  kept  and  continued  the  defendant  so  ejected,  expelled,  put  out, 
and  amoved  from  thence  hitherto,  to  wit,  at,  etc.,  aforesaid.  And  this  the 
defendant  is  ready  to  verify,  wherefore  he  prays  judgment,  etc.^ 

G.  H.,  Atfy  for  Deft. 

n.  1;  3  Chit.  PI.  985,  n.;  Aridrus  v.  Salmon  v.  Siuith,  1  Saund.  204,  n.  2. 
Warring,  20  Johns.  153.  ^ Dean  v.  Cover,  2  Saund.  297,  n. 

'1   Chit.    PI.    423;    Cowp.   588;   1  1;     Ld.    Raym.     1503;    Salmon    v. 

Rich.  C.  P.  500.  Smith,  1  Saund.  204,  n.  1,  2. 

21  Chit.  PL  423;  3  Chit.  PI.  993; 


502  DEBT. 

No.  279.    Replication  denying  eviction. 

{Venue,  and  title  of  cause.) 

And  the  plaintiff  as  to  the  said  plea  of  the  defendant  by  him above 

pleaded,  says,  precludi  non,  because  he  says  that  the  plaintiff  did  not,  be- 
fore the  said  rent  became  due,  eject,  expel,  put  out,  or  amove  the  defend- 
ant from  the  possession  of  the  said  demised  premises,  or  any  part  thereof, 
in  manner  and  form  as  the  defendant  has  above  in  his  said  plea  in  that  be- 
half alleged;  and  this  the  plaintiff  prays  may  be  inquired  of  by  the  country^ 
etc. 

E.  F.,  Att'yfor  Pl'ff. 

No.  2S0.    Plea — To  declaration  on  replevin  bond — That  merits  were  not  de- 
termined in  replevin  suit,  etc. 

(First  plea,  non  est  factum,  as  ante.  No.  261.)  And  for  a  further  plea  in 
this  behalf,  as  to  anj^  damages  by  reason  of  the  said  supposed  breach  (or 
" breaches")  of  the  said  condition  of  the  writing  aforesaid,  except  as  to  the 
sum  of  one  cent,  the  defendants  say  that  the  plaintiff"  ought  not  to  have  his 
afoi'esaid  action  against  them,  the  defendants,  to  recover  any  greater  dam- 
ages than  that  sum,  because  they  say,  that  {here  state  enough  of  the  pro- 
ceedings in  the  replevin  suit  to  show  that  the  merits  were  not  determined  in 
the  trial  thereof  —for  example  as  follows — )  the  said  judgment  in  tlie  said 
action  of  replevin,  in  the  said  declaration    mentioned,  was  given  upon  a 

trial  of  that  action,  in  the  said  court,  at  the  said  term  thereof,  in  the 

said  year  18 — ;  and  that  the  said  trial  was  had  solely  upon  a  certain  issue 
joined  upon  a  certain  replication  of  the  said  C.  D.  to  a  certain  plea  of  the 
said  J.  K.  {the  defendant  in  replevin)  denying  the  jurisdiction  of  the  said 
court  in  that  behalf  (which  said  issue  was  then  and  tliere  found  for  the  said 
J.  K.),  and  upon  no  other  issue  whatsoever:  And  so  the  defendants  say, 
that  the  merits  of  the  case  were  not  determined  in  the  trial  of  the  said  ac- 
tion of  replevin.  And  the  defendants  further  say,  that  the 'said  goods  and 
chattels  in  the  said  writ  of  replevin  mentioned,  at  the  said  time  when,  etc., 
were  the  property  of  the  said  C.  D.,  and  not  of  the  said  J.  K.,  as  by  the  said 
declaration  in  this  behalf  is  above  supposed.  And  this  the  defendants  are 
ready  to  verify:  wherefore  they  pi'ay  judgment  if  the  plaintiff  ought  to 
have  his  aforesaid  action  to  recover  against  them  any  greater  damages 
than  the  said  sum  of  one  cent,  in  this  behalf,  etc. 

It  is  provided  by  statute,  in  Illinois,  that,  "  in  all  actions 
upon  replevin  bonds,  where  the  merits  of  the  case  have  not 
been  determined  in  the  trial  of  the  action  of  replevin  in  which 
the  bond  was  given,  the  defendant  may  plead  the  above  facts, 
and  also  his  or  her  title  to  the  property  in  dispute  in  said  action 
of  replevin," ' 

'  2  Starr  &  Curtis  2018;  Rev.  Stat.  see  Richards  v.  Rape,  3  Bradw. 
(1893)  1174;  Rev.    Stat.  (1895)  1258;      24;    Ledford   v.     Weber,  7  Bradw. 


DEBT.  603 

In  King  v.  Ramsey,  13  111.  619,  the  court  say:  "Enough  of 
the  proceedings  in  the  former  action  should  be  set  forth  to  en- 
able the  court  to  decide  on  demurrer  whether  the  rio-ht  of 
property  has  already  been  determined.  If  the  suit  was  dis- 
missed, that  fact  should  be  stated.  If  there  was  a  trial  the 
plea  ought  to  show  what  were  the  issues,  and  how  they  were 
disposed  of.  The  plea  was  also  defective  in  professing  to  an- 
swer the  entire  cause  of  action.  Even  if  the  goods  replevied 
belonged  to  the  plaintiffs  in  the  action  of  replevin,  and  the 
right  of  property  was  not  determined  in  that  suit,  the  obligee 
would  still  have  a  cause  of  action  on  the  bond,  and  be  entitled 
to  recover  nominal  damages  for  a  failure  to  make  return  of  the 
goods,  as  required  by  the  judgment  of  the  court.'' 

No.  281.     Plea— To  debt  on  statute— Former  conviction  for  same  offense. 

(First  xilea,  nil  debet,  as  ante.  No.  SGO.)  And  for  a  further  plea  in  this 
behalf,  the  defendant  says  that  the  plaintiff  ought  not  to  have  liis  aforesaid 
action  against  him,  the  defendant,  because  he  says,  that  after  the  com- 
mitting of  the  said  offense  in  the  said  declaration  mentioned,  and  before 
the  commencement  of  this  suit,  to  wit,  on,  etc.,  in,  etc.,  aforesaid,  one 
E.  F.  went  befoie  G.  H.,  Esq.,  then  and  still  being  one  of  the 
justices  of  the  peace  in  and  for  the  said  cotmty,  and  informed  the  said 
G.  H.  that  the  defendant,  on,  etc.,  in,  etc.,  did,  etc.  {here  state  the 
offense.,  as  in  the  complaint);  and  thereupon  such  proceedings  were 
had  before  the  said  G.  H.,  the  justice  aforesaid,  that  afterwards,  to 
wit,  on,  etc.,  the  defendant  was  there  duly  convicted  of  the  said  offense, 
according  to  the  fonn  of  the  statute  in  such  case  made  and  provided;  which 
said  judgment  of  conviction  is  yet  in  full  force  and  effect:  And  the  de- 
fendant avers  that  he,  the  defendant,  who  is  sued  by  the  name  of  C  D.  in 
this  suit,  and  the  said  C.  D.  in  the  said  complaint  and  conviction  named, 
are  one  and  the  same  person,  and  not  other  or  different;  and  that  the  said 
offense  in  the  said  declaration  mentioned,  and  the  said  offense  in  the  said 
complaint  cliarged,  and  whereof  the  defendant  was  so  convicted  as  afore- 
said, were  done  and  committed  by  the  defendant  at  one  and  the  same  time, 
and  are  in  fact  the  very  same  offense,  and  not  other  or  different  offenses. 
And  this  he  is  ready  to  verify;  wherefore  he  prays  judgment,  etc. 

In  an  action  for  a  penalty,  where  any  person  may  prosecute, 

87;      King     v.     Ramsey,     13     IlL  0'Z)onnfZZ  v.  Co%.  153  111.  324;  UVft- 

619;     Chinn      v.     McCoy,     19     111.  her  v.  Mick,  131  111.  520;  Holler  v. 

604;  Lemen  v.  Robinson,  59  111.  115;  Coleson,  23  111.  App.  324;  Haneliett 

Stemson    v.    Earnest,    80   111.   513;  v.  Gardner,  138  111.  571. 
Morehead  v.    Yeazel,  10  Brad.  263; 


504  DEBT. 

a  judgment  in  a  suit  by  A.  may  be  pleaded  in  bar  to  a  prose- 
cution by  B.  for  the  same  cause  or  offense.* 

Demurrer,  after  craving  oyer. — In  some  cases,  where 
the  plaintiff  in  the  declaration  partially  states  a  deed  which  is 
defective,  or  contains  matter  qualifying  the  part  stated,  the 
defendant  may  crave  oyer  of  the  deed,  and  set  forth  the  whole, 
thereby  making  it  a  part  of  the  declaration,  and  then  demur 
either  in  respect  of  the  defect  in  the  deed,  or  the  improper 
manner  in  which  the  plaintiff  has  stated  it;  and  this  is  the 
proper  course,  when  upon  oyer  it  would  appear  that  a  bail 
bond  is  defective.  So  a  deed  untruly  stated  in  a  plea,  being 
set  out  upon  03^er  by  the  plaintiff,  becomes  part  of  the  plea, 
and  if  it  thereby  appears  that  the  plea  is  false,  the  plaintiff 
need  not  show  any  matter  of  fact  in  his  replication  to  maintain 
his  action,  but  may  demur;  for  it  is  a  general  rule  that  an  in- 
denture set  out  upon  oyer  becomes  part  of  the  preceding 
plea.^ 

When  it  is  desired  to  crave  oj^er  and  demur  to  a  declara- 
tion, proceed  as  in  form  No.  263,  ante,  or  in  the  remark  there- 
under, setting  out  the  indenture,  etc.,  and  then  say : 

*'  Which  being  read  and  heard,  the  defendant  says  that  the  said  declara- 
tion, and  the  matters  therein  contained,  in  manner  and  form  as  the  same 
are  above  pleaded  and  set  forth,  are  not  sufficient  in  law," — and  so  on,  as 
in  an  ordinary  demurrer. 

Over  is  craved  and  granted  by  the  court,  where  some  writ- 
ing is  in  possession  of  the  opposite  party;  *  but  not  of  an  in- 
strument not  under  seal;  *  or  of  a  record." 

For  replications,  rejoinders  and  demurrers,  the  pleader  is 
referred  to  the  forms  in  chapter  III,  entitled,  Defenses  to  an 
Action. 

'  Crosby  v.  Gipps,  16  111.  352;  see  *  Gatton  v.  Dimmitt,  27  III.  400; 

JR.  R.  Co.  V.  Allen,  39  111.  205;  Ham-  Ins.  Co.  v.  Mehlman,  48  111.  313. 

ilUm  V,  Quimhy,  46  111.  90;  Krtuchi  ^  Giles  v.  Shaiv,  Breese219;  Hanna 

V.  Dehler,  50  111.  176.  v.     Yocum,    17    111.    387;  Deeme  v. 

1  1  Chit.  PI.  578;  Gould's  PL  409,  Crume,   46    111.    69;  see    Young  v. 

419;  see  1  Chit.  PL  424,  425;  Ferrall  Campbell,   5    Gilm.    80;  Linder  v. 

V,  Shaen,  1   Saund.  295,  b;  Boss  v.  Monroe,  33  111.  388;  Brent  v.  Shock, 

Parker,  1  B.  &  C.  358.  36  111.  125;  Bowman  v.  irood,  41  111. 

^Eddy   V.    Brady,    16     IlL    307;  203. 
Hanna  v.  Yocum,  17  111.  387. 


CHAPTEE  Xiy. 

HABEAS   CORPUS. 

Origin  and  history  of  the  writ.— The  writ  of  fiaheas  cor- 
pus is  an  ancient  English  writ,  used  for  a  variety  of  purposes 
from  a  remote  antiquity.  One  of  the  purposes  for  which  it 
was  used  was  to  recover  freedom  which  had  been  wrongfully 
taken  away.  Personal  liberty  was  always  asserted  by  the  com- 
mon law,  from  its  earliest  ages;  and  it  was  always  assailed  by 
kings  who  would  be  tyrants,  and  with  an  earnestness  proper: 
tioned  to  their  tyranny.  Hence  it  became  necessary  to  declare 
this  principle  in  the  most  solemn  manner  in  Magna  Charta  (A. 
D.  1215).  But  before  the  31st  year  of  the  reign  of  Charles  II. 
(A.  D.  1679,)  its  benefits  were  in  a  great  degree  eluded  by 
time-serving  judges,  who  awarded  it  only  in  term  time,  and 
who  assumed  a  discretionary  power  of  awarding  or  refusino- 
it.  The  writ  was  evaded  by  courts  and  sheriffs  who  were  dis- 
posed to  support  royal  and  ministerial  usurpations;  and  it  be- 
came so  powerless,  that  early  in  the  reign  of  Charles  I.  (1626.) 
the  court  of  king's  bench  formally  decided  that  it  had  no 
power  to  release  any  person  imprisoned  without  any  cause  as- 
signed, if  he  was  imprisoned  by  the  express  command  of  the 
king,  or  by  the  lords  of  the  privy  council.  The  petition  of 
rights,  of  the  third  year  of  the  reign  of  Charles  I.  (A.  D.  1628,) 
asserted  the  illegality  of  this  decision,  and  declared  that  "no 
freeman  should  be  imprisoned  or  detained  without  cause 
shown,  to  which  he  may  make  answer  according  to  law." 
But  the  means  of  enforcing  this  rule  were  still  imperfect,  and 
personal  liberty  was  still  violated;  and  by  16  Charles  I.,  chap. 
10,  (A.  D.  1641,)  various  provisions  were  enacted,  intended 
to  make  the  writ  of  habeas  corpus  more  effectual.  But  this 
was  not  enough.  The  judges  still  continued  to  refuse  the 
writ  at  their  pleasure;  and  prisoners  were  sent  to  distant  jails, 

(505) 


506  HABEAS   COKPUS. 

and  sheriffs  and  jailers  refused  to  obey  it;  or  if  the  person  im- 
prisoned was  brought  before  an  examining  court,  his  hberty 
was  still  denied  him  on  frivolous  pretenses.  To  secure  the 
full  benefits  of  the  writ  to  the  subject,  the  statute  of  31 
Charles  II.,  chap.  2,(1679,)  commonly  called  the  habeas  corpus 
act,  was  passed.  This  gave  to  the  writ  the  vigor,  life  and 
efficacy  requisite  for  the  due  protection  of  the  liberty  of  the 
subject.  This  act  consisted  of  a  variety  of  provisions,  de- 
vised with  so  much  skill,  and  so  well  adapted  to  give  each 
other  mutual  support,  that  it  may  safely  be  asserted  that  per- 
sonal liberty  will  be  safe,  in  England  and  the  United  States, 
so  long  as  this  law  remains  in  force.  Evasion  of  it  is  almost 
impossible;  and  it  can  be  made  ineffectual  only  by  a  positive 
and  open  violation  of  its  essential  provisions,  or  by  a  distinct 
denial  of  its  interposition.  The  enactment  of  this  great "  pal- 
ladium" of  English  liberty  was  secured  after  persistent  efforts 
on  the  part  of  Lord  Shaftesbury  and  other  friends  of  liberty 
in  parliament.  The  bill  only  passed  the  House  of  Lords  by  an 
erroneously  reported  vote  of  fifty-seven  to  fifty-five.  It  is 
alleged  by  a  cotemporary  writer  that  it  was  passed  by  a  fool- 
ish jest  and  falsehood.^  The  manner  of  its  passage  is  related 
to  have  been  as  follows  :  The  bill  had  passed  the  House  of 
Commons,  and  was  taken  to  the  House  of  Lords.  When  the 
question  was  about  to  be  taken  in  that  house,  "  Lords  Grey 
and  Norris  were  named  to  be  the  tellers.  Lord  Norris,  being 
a  man  subject  to  vapors,  was  not  at  all  times  attentive  to  what 
was  doing.  So  a  very  fat  lord  coming  in.  Lord  Grey  counted 
him  for  ten,  as  a  jest  only  at  first;  but  seeing  Lord  Norris  had 
not  observed  it,  he  went  on  with  his  misreckoning  of  ten,  and 
so  it  was  reported  to  the  house,  and  declared  that  they  who 
were  for  the  bill  were  in  a  majorit}^,  though  it  indeed  went  on 
the  other  side."  Shaftesbury,  who  presided  as  Lord  Chancel- 
lor, then  spoke  until  members  had  come  and  gone,  so  that  the 
house  could  not  be  retold,  and  the  mistake  corrected.  The 
bill  was  approved  by  the  king,  and  became  a  law.  Lord  Camp- 
bell, in  his  life  of  Lord  Shaftesbury,  says  that  there  must  have 
been  some  mistake  in  the  return  of  the  votes  upon  the  bill, 

'  Bishop  Burnet's  History  of  His  Own  Times, 


HABEAS    CORPUS.  507 

because  the  journal  of  the  House  of  Lords  shows  that  the 
whole  number  of  lords  present  was  one  hundred  and  seven, 
w^hile  the  bill  was  declared  jDassed  by  fifty-seven  to  fifty-five. 

Although  this  great  act  may  have  been  procured  by  a  jest 
and  unfair  means,  and  at  a  period  of  turbulence  and  disorder, 
it  is  one  of  the  most  salutary  measures  ever  passed  by  the 
British  parliament,  and  renders  the  year  1679  a  most  impor- 
tant era  in  the  history  of  constitutional  liberty. 

The  habeas  corpus  act  has  been  substantially  incorporated 
into  the  jurisprudence  of  every  state  in  the  Union; '  and  the 
right  to  the  writ  has  been  secured  by  the  constitutions  of  most 
of  the  states,  and  by  that  of  the  United  States. 

The  constitution  of  the  United  States,  art.  1,  sec.  9,  par.  2, 
provides,  that  "the  privilege  of  the  writ  of  habeas  corj9w* shall 
not  be  suspended,  unless  when,  in  cases  of  rebellion  or  invasion, 
the  public  safety  may  require  it." 

By  the  statute  of  Illinois,  the  benefit  of  the  writ  of  habeas 
corpus  is  given  in  all  cases  where  "  any  person  shall  be  com- 
mitted or  detained  for  any  criminal  or  supposed  criminal  mat- 
ter," and  where  "  any  person,  not  being  committed  or  detained 
for  any  criminal  or  supposed  criminal  matter,  shall  be  confined 
or  restrained  of  his  liberty,  under  any  color  or  pretense  what- 
ever." And  in  order  to  still  further  secure  to  the  citizen  the 
benefit  of  this  w^rit,  a  heavy  penalty  is  imposed  upon  any  judge, 
empowered  to  grant  such  writ,  if  he  corruptly  refuses,  or  un- 
reasonably delays,  so  to  do;  and  upon  any  sheriff,  jailer  or  other 
person  Avho  refuses  or  evades  obedience  to  such  writ.^ 

The  statute  of  Illinois  will  be  understood  as  referred  to, 
when  any  statutory  provision  is  hereafter  quoted  or  mentioned 
in  this  chapter. 

When  it  is  to  be  granted. — The  writ  is  to  be  granted  when- 
ever a  person  is  in  actual  confinement,  or  restrained  of  his  lib- 
erty, under  any  color  or  pretense  whatever.  Every  restraint 
upon  a  man's  liberty  is,  in  the  eye  of  the  law,  an  imprisonment, 
wherever  may  be  the  place,  or  whatever  may  be  the  manner, 

'  Hammoiid  v.  People,  32  111.  446.  ^  j  gt^rr  &  Curtis  1253;  Rev.  Stat. 

(1893)  799;  Rev.  Stat.  (1895)  846,  SiS. 


508  HABEAS    COKPUS. 

in  which  the  restraint  is  effected.'  Words  may  constitute  an 
imprisonment,  if  they  impose  a  restraint  upon  the  person,  and 
he  is  accordingly  restrained  and  submits/  It  may  be  on  the 
public  street,  and  though  the  party  is  not  put  into  any  prison 
or  house/  Whenever  a  person  is  deprived  of  the  privilege  of 
going  when  and  where  he  pleases,  he  is  restrained  of  his  lib- 
erty, and  has  a  right  to  inquire  if  that  restraint,  whether  by  a 
sheriff,  constable,  or  private  individual,  is  illegal  and  wrongful. 
It  is  not  necessary  that  the  degradation  of  being  incarcerated 
in  a  prison  should  be  undergone,  to  entitle  any  citizen,  who 
may  consider  himself  unjustly  charged  with  a  breach  of  the 
laws,  to  a  hearing.* 

A  mere  moral  restraint,  however,  is  not  such  an  imprison- 
ment as  will  entitle  the  party  to  the  writ.*  Persons  discharged 
on  bail  will  not  be  considered  as  restrained  of  their  liberty,  so 
as  to  be  entitled  to  a  writ  of  habeas  corj)us.^  It  is  immaterial 
whether  the  imprisonment  is  under  criminal  or  civil  process; 
if  it  is  illegal,  the  prisoner  is  entitled  to  the  benefit  of  the 
writ.' 

The  court  has  power,  on  haheas  corpus^  to  determine  the 
question  of  the  right  to  the  custody  of  a  child,*  Before  a 
writ  of  habeas  corpus  is  granted,  sufficient  probable  cause  must 
be  shown.  If  it  appears,  upon  the  petitioner's  own  showing, 
that  there  is  no  sufficient  ground,  prima  facie,  for  his  dis- 
charge, the  court  will  not  issue  the  writ.  It  ought  not  to  be 
granted  if  the  court  is  satisfied  that  the  prisoner  should  be  re- 
manded,^ 

In  the  United  States,  the  right   of   bail   has  been  thought 

•Hurd  on  Hab.  Corp.  209;  1  Kent  Arnold,  3  Yeates  263;  Com.  v.  Rob- 

631.  inson,    1   S.  &  R.  356;  Territory  v. 

« 1  Kent  631;  Butler  N,  P.  62;  Pike  Cutler,  1  McCahon  (Kan.)  152. 

V.  fla?? son,  9  N.  H.  491;  Tri7Zia7»son  "<  Hecker  v.   Jarrett,  3   Biun.   404; 

V.  Letcis,  39  Penn.  State  9;  see  Wales  People  v.  Turner,  55  111.  280;  People 

V.  Whitney,  114  U.  S.  564.  v.  Whitson,  74  111.  20. 

^Hurd  on  Habeas  Corpus,  210.  *  State  v.  Richardson,  40  N.  H.  272; 

*  Commonu-ealth  v.  Ridgeuxty,  2  1  Geo.  Decis.  93;  Ex  parte  Ferrier, 
Ashm.  (Pa.)  247;  Kurd  Hab.  Corp.,  103  111.  367. 

210.  'Sm's  Case,  7  Cush.  285;  2  M.  & 

■'Dodge's  Case,  6  Mart.  (La.)  569;  S.  428;  3  Black.  132;    see  Ex  parte 

Wales  V.  Whitney,  114  U.  S.  564.  Klepper,  26  111.  532;  Jn  re  O'Connor, 

•  1  Bouv.  Law  D.  574;    State  v.  6  Wis.  288. 


HABEAS   CORPUS.  509 

worth}^  of  constitutional  protection.  In  the  federal  constitu- 
tion, and  in  the  constitutions  of  nearly  all  the  states,  it  is  pro- 
vided that  "  excessive  bail  shall  not  be  required." 

The  constitution  of  Illinois  provides,  that  "  all  persons  shall 
be  bailable  by  sufficient  sureties,  unless  for  capital  offenses, 
where  the  proof  is  evident  or  the  presumption  great.."  ' 

Where  bail,  in  a  bailable  case,  has  been  refused  by  the  com- 
mittinf]^  magistrate,  the  writ  of  habeas  corpus  may  be  granted 
for  the  sole  purpose  of  admitting  the  prisoner  to  bail."  And 
so  when  excessive  bail  has  been  exacted,  and  it  ap]>ears 
from  the  petition  that  the  bail  is  unreasonable,  the  judge  may, 
in  the  plenitude  of  that  power  which  he  possesses  at  common 
law,  in  the  sound  exercise  of  his  discretion,  reduce  the  bail  to 
a  reasonable  amount.^ 

If  an  affidavit  for  a  capias  ad  respondendum,  in  an  action  ex 
contractu,  does  not  conform  to  the  requirements  of  the  consti- 
tution (of  Illinois),  a  person  imprisoned  under  the  capias  may 
be  discharged  on  a  habeas  corpus* 

By  whom  application  may  be  made. — Although  the  per- 
son imprisoned  has  an  undoubted  right  to  make  the  applicii- 
tion,  it  is  not  necessary  that  it  should  proceed  directly  from 
him.  It  may  be  made  by  an  agent,  or  friend,  on  behalf  of  the 
prisoner; '  or  by  a  wife  on  behalf  of  her  husband;  °  or  a  hus- 
band on  behalf  of  his  wife.'  But  no  legal  relation  is  required 
to  exist  between  the  prisoner  and  the  person  making  the  ap- 
plication. It  may  be  made  by  any  one.'  Where  the  applica- 
tion is  by  a  third  person,  it  is  supposed  to  be  made  in  accord- 
ance with  the  wishes  of  the  person  restrained  of   his  liberty, 

'Art.  3,  Sec.  7,  Const,  of  111.  People  v.  Hancheft,  111  111.  90;   Ex 

2  4  Inst.  290;  Ex  parte  Croom,  19  parte  Smith,  16  111.  347. 

Ala.  561;   Com.  v.  Keeper,  2  Ashm.  ^  i4  How,  St.    Tr.  814;  Rev.    Stat. 

(Pa.)  227;  Ex  parte  Taylor,  5  Cow.  (1893)  797;    1  Starr  &   Curtis   1253; 

39;    Jones    v.   Kelly,   17  Mass.    116;  Rev.  Stat.  (1895)  846. 

Eva^is  V.  Foster,  IN.  H.  374;  see^a;  *  Kurd's  Hab.  Corp.   211;  Cobbett 

2)arte  Klepper,  26  111.  532;  People  v.  v.  Hudson,  10  Eng.  C.  L.  R.  318. 

McLeod,   1  Hill  (N.   Y.)  398.  ''Gregory's    case,     4  Burr.    1991; 

^  Jones  V.    Kelly,   17    Mass.    116;  Hurd's  Hab.  Corp.,   211;  People  v. 

Hurd's  Hab.  Corp.  449;  see  People  Mercein,  8  Paige  47. 

V.  Town,  3  Scam,  19.  ®  The   Hottentot    Venus  Case,  13 

*Ex  parte  Salisbury,  16  IlL  350;  East  195;  State  v.  Philpot,  Dudlev 

(Ga.)  42. 


510  HABEAS    CORPUS. 

and  is  allowed  to  prevent  delay,  where  the  latter  is  repre- 
sented to  be  under  any  disability,  or  in  any  manner  prevented 
from  making  the  application  in  his  own  right.'  But  mere 
volunteers,  who  do  not  appear  on  behalf  of  the  prisoner,  or 
show  some  right  to  represent  him,  will  not  be  heard.'' 

The  writ  may  be  granted  at  the  instance  of  a  parent  for  his 
child,'  a  guardian  for  his  Avard,*  a  master  for  his  apprentice,^ 
or  a  special  bail  for  his  principal.* 

Section  24  of  the  statute,  entitled  "  Lunatics,"  provides  that 
"  when  a  patient,  committed  to  the  insane  hospital,  shall  be 
restored  to  reason,  he  Avill  be  discharged,  and  that  if  he  be 
detained  afterward,  contrary  to  his  wishes,  he  shall  have  a 
writ  of  habeas  corpus.'' 

The  writ  of  habeas  corpus  does  not  lie  to  review  a  judgment 
at  law,  for  an  alleged  error  in  the  proceedings  in  a  case  where 
the  court  had  jurisdiction  of  the  subject-matter  and  of  the 
person.'  A  writ  of  error  will  not  lie  to  review  the  finding  of 
the  court  below  upon  a  writ  of  habeas  corpus.^ 

To  whom  application  may  be  made. — In  Illinois,  the  appli- 
cation for  a  writ  of  habeas  corptis  may  be  made  to  the  supreme 
or  circuit  courts  in  term  time,  or  any  judge  thereof  in  vaca- 
tion.'" Masters  in  chancery,  in  their  respective  counties,  have 
power,  in  the  absence  of  the  judge  from  the  county,  to  order 
the  issuing  of  writs  of  habeas  corpus.^^  They  have,  however, 
no  power  to  issue  writs;  but  they  may,  by  indorsement  on  the 
application,  order  the  clerk  of  the  circuit  court  to  issue  such 
writs.     The  writ  should  not  be  made  returnable  before  the 

1  Kurd's  Hab.  Corp.,  212.  •>  Rev.    Stat.  (1893)  949;  Rev.  Stat. 

^  Rexx.    Clark,  3   Burr.  1363;  Ex  (1895)  1011;   2  StaiT  &  Curtis   1573; 

parte  Child,    29  E.    C.    L.  R.    259;  People  v.  Oilhert,  115  111.  59. 

Linda  v.  Hudson,  1  Cusli.  385.  *  Ex    parte    Smith,   117    III.    63; 

^People   V.    Mercein,   3    Hill  399;  People  v.  Allen,  \mi\\.  AOQ. 

People  V.  Mercein,  8  Paige   Ch.  47.  ^  People  v.  Skinner,  19    111.   App. 

*  Commonw.   v.  Dotvens,  24  Pick.  332;  People  v.   Gilbert,  57  III.   App. 

227;    Commonw.    v.   Hammond,   10  505. 

Pick.      274;    Hovey    v.    Morris,    7  '« Starr  &  Curtis   709;  Rev.  Stat. 

Blackf.  559.  (1893)   436;    Rev.    Stat.   (1895),   478; 

^People  v.  Pillow,  1  Sanf.  672.  Matson  v.  Sioanson,  131  III.  255. 

^Halsey  v.  Trevillo,  6  Watts  402;  "2  Starr  &  Curtis,  1598;  Rev.  Stat. 

Anon  V.  Penni)igton,  484;    Bond  v.  (1893),  962;  Rev.  Stat.  (1895),  1024. 
Isaac,  1  Burr,  339. 


HABEAS   CORPUS.  511 

master,  but  to  the  circuit  or  supreme  court,  if  in  session,  or, 
in  vacation,  before  some  judge  of  one  of  those  courts.' 

It  is  not  for  the  applicant  to  select,  at  will,  the  judge  to 
whom  he  will  apply,  and  then  compel  the  officer  holding  him 
in  custody  to  convey  him  to  another  part  of  the  state.  The 
application  should  be  made  to  the  judge  in  the  county  or  dis- 
trict where  the  prisoner  is  detained,'  or,  in  case  of  his  absence, 
to  the  master.  A  judge  of  another  circuit  will  not  entertain 
the  application,  unless  special  reasons  are  shown  for  his  so 
doing. 

Form  of  application. — If  the  prisoner  is  committed  or  de- 
tained for  a  criminal  or  supposed  criminal  matter,  the  appli- 
cation must  be  in  writing,  and  signed  by  the  prisoner,  or  some 
person  on  his  behalf,  setting  forth  the  facts  concerning  his 
imprisonment,  and  in  whose  custody  he  is  detained;  and  it 
must  be  accompanied  by  a  copy  of  the  w^arrant  or  warrants  of 
commitment,  or  an  affidavit  that  such  copy  has  been  demanded 
of  the  person  in  whose  custody  the  prisoner  is  detained,  and 
by  him  refused  or  neglected  to  be  given.^ 

"When  any  person,  not  committed  or  detained  for  any  criminal 
or  supposed  criminal  matter,  is  confined  or  restrained  of  his  lib- 
erty, under  any  color  or  pretense  w^hatever,  the  application  for 
the  writ  must  be  in  writing,  signed  b}'^  such  person,  or  some 
other  on  his  behalf,  setting  forth  the  facts  concerning  his  im- 
prisonment, and  wherein  the  illegality  of  such  imprisonment 
consists,  and  in  whose  custody  he  is  detained;  and  the  applica- 
tion or  petition  must  be  verified  by  the  oath  or  affirmation  of 
the  party  applying,  or  some  other  person  on  his  behalf.  If  the 
confinement  or  restraint  is  by  virtue  of  any  judicial  writ  or 
process,  or  order,  a  copy  thereof  must  be  annexed  to  the  peti- 
tion, or  an  affidavit  made  that  such  copy  has  been  demanded 
and  refused.* 

A  petition  for  a  writ  of  habeas  corpus,  where  the  prisoner 
has  been  regularly  committed,  should  set  forth  the  evidence 
adduced  before  the  examining  magistrate,  so  that  the  court 

'  People  V.  Toum,  3  Scam.  19.  *  1  Starr  &  Curtis  1253;  Rev.  Stat. 

«  Ex  joarte  Ellis,  11  Cal.  222.  (1893)  797;  Rev.  Stat.  (1895)  846, 

3 1  Starr  &  Curtis,  1253;  Rev.  Stat, 
(1893)  797;  Rev.  Stat.  (1895),  846. 


512  HABEAS   COEPtJS. 

may  act  advisedly.  The  aflSdavits  of  the  petitioner  and  his 
counsel,  giving  their  opinions,  will  not  be  sufficient.  The  court 
will  presume  that  the  committing  magistrate  acted  properly 
upon  the  evidence  submitted,  and  will  sustain  his  proceedings, 
preferring  to  rely  upon  the  presumptions  in  favor  of  the  con- 
duct of  the  magistrate,  rather  than  to  take  the  opinions  of  the 
accused  or  his  counsel.' 

No.  2S2.    Petition  for  a  habeas  corpus,  tvJiei'e  petitioner  is  detained  without 

warrant,  etc 

To  the  cu-cuit  court  of  the  county  of ,  in  the  State  of  Illinois  {or,  in 

vacation,  "  To  the  honorable  J.  K.,  judge  of  the judicial  circuit  of  the 

State  of  Illinois"). 

Your  petitioner,  A.  B.,  of,  etc.,  complaining,  shows  that  he  is  detained  and 
imprisoned  by  C.  D.,  sherilf  of  the  said  county  of ,  without  any  author- 
ity of  law,  for  a  supposed  criminal  matter,  the  precise  nature  whereof  is  to 
the  petitioner  unknown.  And  your  petitioner  further  shows  that  he  has  de- 
manded of  the  said  C.  D.  a  copy  of  the  warrant  or  warrants  for  the  com- 
mitment of  the  petitioner,  but  the  said  C.  D.  has  hitherto  refuse  1,  and  still 
refuses,  to  deliver  such  copy  to  the  petitioner;  and  he  believes  that  the  said 
C.  D.  has  no  wai-rant  whatever  for  the  commitment  or  detention  of  the 
petitioner,  but  merely  detains  him  on  suspicion  that  he  may  be  guilty  of 
some  criminal  offense. 

Your  petitioner  therefore  prays  a  writ  of  habeas  corpus  in  this  behalf,  to 
be  directed  to  the  said  C.  D. ,  and  returnable  forthwith,  according  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

A.  B. 

State  of  Illinois.  }     . 

County  of .      f  A.  B. ,  the  petitioner  in  the  foregoing  petition 

named,  makes  oath  and  says,  that  the  mattei-s  and  things  in  the  said  peti- 
tion contained  are  true,  to  the  best  of  his  knowledge,  information  and 

belief. 

A.  B. 

Subscribed  and  sworn,  etc. 

A  verification  of  the  petition  by  affidavit,  though  usual, 
would  seem  not  to  be  required  b}^  the  statute,  where  the  deten- 
tion is  for  any  criminal  or  supposed  criminal  matter.  But  if 
a  copy  of  the  warrant  has  been  refused,  that  fact  must  be 
shown  by  affidavit." 

^Ex  parte  Klepper,   26   111.    532;  "See   Hurd's    Hab.  Corp.  218;    1 

Piatt  V.  Harrison,  G   Clarke   (Iowa)  Starr  &  Curtis  1253;  Rev.  Stat.  (1893) 

79;  see  In  re  aCo7i7wr,  6  Wis.  288;  797;  Rev.  Stat.  (1895)  846. 
Ex  parte  Tliompson,  93  111.  89. 


HABEAS   CORPUS.  513 

No.  SS3.    Petition  for  a  habeas  corpus,  where  petitioner  is  detained  under 
a  warrant  of  commitment. 

{Address,  as  in  last  precedent.)  The  petitioner,  A.  B.,  of,  etc. ,  complain- 
ing, shows  that  he  is  detained  and  imprisoned  in  the  jail  of  the  said  county 
of  — — ,  by  C.  D. ,  sheriff  and  jailer  of  the  said  county,  on  a  charge  of  lar- 
ceny, by  virtue  of  a  certain  warrant  for  the  commitment  of  the  petitioner, 
a  copy  whereof  is  hereto  annexed;  which  detention  and  imprisonment  of 
the  petitioner  are  unjust,  and  contrary  to  law. 

And  the  petitioner  further  shows  that  the  evidence  on  which  his  said 
commitment  was  based  was  in  substance  as  follows,  that  is  to  say:  (Hei-e 
give  the  substance  of  the  evidence.  Any  other  matters,  or  grounds  of  dis- 
charge, may  he  likeivise  set  forth.) 

To  be  relieved  from  which  said  detention  and  imprisonment  the  peti- 
tioner now  applies,  praying  that  a  writ  of  habeas  corpus,  to  be  directed  to 
the  said  C.  D.,  may  issue  in  this  behalf,  pursuant  to  the  statute  in  such  case 
made  and  provided,  so  that  the  petitioner  may  be  forthwith  brought  before 
this  court,  {or,  "your  honor,")  to  do,  submit  to  and  receive  what  the  law 
may  require. 

A.  B. 

{An  affidavit  may  be  added,  as  in  last  precedent;  and  annex  copy  of 
vxirrant.) 

No.  284.    Petition  for  habeas  corpus,  by  a  parent  for  a  child. 

(Address,  as  in  No.  282.  ante.)  The  petitioner,  A.  B. ,  of,  etc. ,  complaining, 
shows  that  E.  F.,  aged years,  the  daughter  of  the  petitioner,  is  re- 
strained of  her  liberty  by  C.  D.,  of,  etc,;  and  that  the  said  E.  F.  is  not 
detained  for  any  criminal  or  supposed  criminal  matter.  And  the  petitioner 
further  shows,  that  {here  set  forth  the  facts  concerning  the  detention,  and 
ifherein  the  illegality  thereof  consists,  etc.) 

The  petitioner  therefore  prays  a  writ  of  habeas  corpus,  pursuant  to  thQ 
statute  in  such  case  made  and  jirovided,  to  be  directed  to  the  said  C.  D.. 
commanding  him  to  bring  the  said  E.  F.  forthwith  before  the  court  here, 
{or  "  your  honor  "),  and  to  show  the  cause  of  her  detention,  etc. 

A,  B. 

{Add  affidavit,  as  in  No.  282,  ante.) 

No.  285.    Petition  for  a  habeas  corpus,  lohere  petitioner  is  held  rmder  a 
capias  ad  respondendum. 

{Address  as  in  No.  282,  ante.)  The  petitioner,  A.  B.,  of,  etc.,  complaining 
sliows  that  he  is  unjustly  imprisoned  and  restrained  of  his  liberty  by  C.  D. , 

sheriff  of  the  said  county  of ,  by  virtue  of  a  certain  writ  of  capias  ad 

respondendum,  issued  from  the court  of  the  county  aforesaid,  a  copy 

of  which  said  writ,  marked  Exhibit  A,  is  annexed  to  and  made  a  part  of 
this  petition.  And  your  petitioner  further  shows  that  his  said  imprison- 
ment and  restraint  are  unlawful,  for  the  reason  that  the  affidavit  on  which 
the  said  writ  of  capias  issued  was  wholly  insufficient  to  authorize  the  issu- 
33 


514  HABEAS    CORPUS. 

ing  of  such  writ;  as  will  fully  appear  by  a  copy  of  the  said  affidavit,  marked 
Exhibit  B,  annexed  to  and  made  a  part  of  this  petition . 

Wherefore  the  petitioner  prays  a  writ  of  Jiabeas  corpus  in  this  behalf,  to 
be  directed  to  the  said  C.  D.,  and  returnable  forthwith,  according  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

A.  B. 

{Add  affidavit  as  in  No.  282,  ante.) 

By  the  "act  concerning  bail  in  civil  cases,"  (1872),  it  is  pro- 
vided that  "  the  court  in  term-time,  or  the  judge  in  vacation, 
may,  on  application,  discharge  the  defendant  from  arrest,  for 
insufficiency  of  the  affidavit,  or  hecause  the  facts  stated  therein 
are  not  true.,  or  other  good  cause  which  would  entitle  him  to 
be  discharged  upon  habeas  corpus;  or  in  case  he  has  given  bail 
may  discharge  the  same,  or  reduce  the  amount  thereof,  upon 
good  cause  shown."  ^ 

No.  3S6.     Petition  for  a  habeas  corpus  ad  testificandum. 

(Address,  as  in  No.  283,  ante.)  The  petitioner,  A.  B.,  respectfully  shows 
that  he  is  the  party  defendant  in  a  certain  cause  now  pending  in  said  court 

{or  "in  the court  of  the  county  of ,")to  wit,  a  certain  action  of 

,  wherein  oneC.  D.  is  plaintiff;  that  the  said  cause  is  set  for  trial  in  the 

said  court  on  {or  "  will  probably  come  on  for  trial  in  the  said  court  on  or 

about ")  the day  of,  etc. ;  that  one  E.  F.  is  a  material  witness  for  the 

petitioner,  in  the  said  cause;  and  that  the  said  E.  F.  is  now  a  prisoner  in 

the  custody  of  G.  H.,  sheriff  of  the  said  county  of ,  and  therefore  the 

petitioner  will  be  unable  to  produce  the  said  E.  F.  as  a  witness,  on  the  trial 
of  the  said  cause  by  oi'dinary  process  of  law. 

Wherefore  the  petitioner  prays  a  writ  of  habeas  corpus  ad  testificandum, 

according  to  the  form  of  the  statute  in  such  ca.se  made  and  provided,  to  be 

directed  to  the  said  G.  H.,  and  commanding  him  that  he  have  the  said  E.  F. 

before  the  said  court  at,  etc.,  on,  etc.,  to  testify  on  behalf  of  the  petitioner, 

etc. 

A.  B. 

{An  affidavit  may  he  added  as  in  No.  282,  ante.) 

The  statute  also  provides  for  a  haheas  corpus  for  the  purpose 
of  bringing  in  a  prisoner  to  be  surrendered  in  discharge  of  bail, 
and  also  for  the  purpose  of  discharging  a  person  committed  for 
a  contempt  in  not  performing  an  order  or  decree  for  the  pay- 

iRev.  Stat.  (1893),  191;  1  Starr  &  Curtis,  360;  Rev.  Stat.  (1895),  193; 
Bruner  v.  Ingraham,   1  Scam.  556. 


HABEAS   CORPUS.  515 

ment  of  money,  where  such  person  is  unable  to  comply  with 
the  order  or  decree,  or  is  unable  to  endure  the  confinement.' 

Allowing  and  issuing  of  the  writ.— If  issued  by  the  court, 
the  writ  is  to  be  under  the  seal  of  the  court;  if  by  a  judge, 
under  his  hand.*  "Where  the  writ  is  allowed  by  the  master,  his 
order,  to  be  indorsed  on  the  application,  may  be  as  follows : 

No.  287.     Master's  order  for  a  habeas  corpus,  in  absence  of  judge. 

In  the  absence  of  the  honorable  J.  K.,  judge  of  this  judicial  circuit,  from 
this  county  (and  circuit),  I  do  hereby  order  that  a  habeas  corpus  issue  on 
the  within  application,   returnable  forthwith  into  the  circuit  court  of  the 

county  of (or  "  before  the  said  judge,  at,  etc.,"  or,  if  the  judge  is  absent 

from  the  circuit,    "  before  the  honorable  L.  M.,  judge  of  the judicial 

circuit,  at,  etc.") 

{Date.) 

O.  P.,  Master  in  Chancery 

for  the  county  of . 

To  R.  S..  Clerk,  etc. 

On  filing  the  application,  so  indorsed,  with  the  clerk  of  the 
court  whereof  the  person  allowing  the  writ  is  master,  such 
clerk  will  immediately  issue  the  writ.^ 

No.  288.     General  form  of  a  writ  of  habeas  corpus. 

The  People  of  the  State  of  Illinois: 

To  the  sheriflf  of  the county  (or  to  A.  B.,  as  the  case  may  be). 

You  are  hereby  commanded  to  have  the  body  of  C.  D.,  by  you  imprisoned 
and  detained,  as  it  is  said,  together  with  the  time  and  cause  of  imprison- 
ment and  detention,  by  whatever  name  said  C.  D.  shall  be  called  or  charged 

before  the court  of county  (or  before  E.  F.,  judge  of,  etc.),  at,  etc.. 

immediately  after  being  served  with  this  writ,  to  be  dealt  with  according 
to  law;  and  have  you  then  and  there  this  writ,  with  a  return  thereon  of 
your  doings  in  the  premises. 

Indorsement. — To  the  intent  that  no  officer,  or  other  per- 
son to  whom  such  writ  is  directed,  may  pretend  ignorance 
thereof,  every  such  writ  shall  be  indorsed  with  these  words  : 
"  ^y  the  Habeas  Corpus  Act."  * 

Service  of  writ. — "  The  haheas  corpus  may  be  served  by  the 
sheriff,  coroner,  or  any  constable  or  other  person  appointed  for 

'  1  Starr  &  Curtis  1260;  Rev.  Stat.  »  See  People  v.  Toum.  3  Scam.  19- 

(1895)  850.  "Rev.  Stat.  (1893)  798;  Rev.  Stat. 

■'  1  Starr  &  Curtis  1254:  Rev.  Stat.  (1895)  847. 
(1893)  798;  Rev.  Stat.  (1895)  847. 


516  HABEAS   COKPUS. 

that  purpose  by  the  court  or  judge  by  whom  it  is  issued  or  al- 
lowed. If  served  by  a  person  not  an  officer,  he  shall  have  the 
same  power,  and  be  liable  to  the  same  penalty  for  non-perform- 
ance of  his  duty  as  though  he  was  sheriff. 

"  Service  shall  be  made  by  leaving  a  copy  of  the  original 
writ  with  the  person  to  whom  it  is  directed,  or  with  any  of  his 
under  officers  who  may  be  at  the  place  Avhere  the  prisoner  is 
detained;  or  if  he  can  not  be  found,  or  has  not  the  person  im- 
prisoned or  restrained  in  custody,  the  service  may  be  made 
upon  any  person  who  has  him  in  custody,  with  the  same  effect 
as  though  he  had  been  made  a  defendant  therein." ' 

Expenses,  etc. — "When  the  person  confined  or  restrained 
is  in  the  custody  of  a  civil  officer,  the  court  or  judge  granting 
the  writ  shall  certify  thereon  the  sura  to  be  paid  for  the  ex- 
pense of  bringing  him  from  the  place  of  imprisonment,  not 
exceeding  ten  cents  per  mile,  and  the  officer  shall  not  be  bound 
to  obey  it  unless  the  sum  so  certified  is  paid  or  tendered  to 
him,  and  security  is  given  to  pay  the  charges  of  carrying  him 
back,  if  he  should  be  remanded  :  Pi^ovided^  that  if  such  court 
or  judge  shall  be  satisfied  that  the  person  so  confined  or  re- 
strained is  a  poor  person,  and  unable  to  pay  such  expenses, 
then  the  court  or  judge  shall  so  certify  on  such  writ,  and  in 
such  case  no  tender  or  payment  of  expenses  need  be  made  or 
security  given  as  aforesaid,  but  the  officer  shall  be  bound  to 
obey  such  writ." 

Return  of  writ. — "  The  officer  or  person  upon  whom  such 
writ  is  served,  shall  state  in  his  return,  plainly  and  unequivo- 
cally : 

1.  Whether  he  has  or  has  not  the  party  in  his  custody  or 
control,  or  under  his  restraint,  and  if  he  has  not,  whether  he 
has  had  the  party  in  his  custody  or  control  or  under  his  re- 
straint at  any  and  what  time  prior  or  subsequent  to  the.  date 
of  the  writ. 

2.  If  he  has  the  party  in  his  custody  or  control,  or  under 
his  restraint,  the  authorit}'^  and  true  cause  of  such  imprison- 
ment or  restraint,  setting  forth  the  same  at  large. 

3.  If  the  party  is  detained  by  virtue  of  any  writ,  warrant 

»Rev.  Stat.  (1893),  798;  Rev. -Stat.  (1895),  847. 


HABEAS   COUPUS.  517 

or  other  written  authority,  a  copy  thereof  shall  be  annexed  to 
the  return,  and  the  original  shall  be  produced  and  exhibited  on 
the  return  of  the  writ  to  the  court  or  judge  before  whom  the 
same  is  returnable. 

4.  If  the  person  upon  whom  the  writ  is  served  has  had  the 
party  in  his  custody  or  control,  or  under  his  restraint,  at  any 
time  prior  or  subsequent  to  the  date  of  the  writ,  but  has  trans- 
ferred such  custody  or  restraint  to  another,  the  return  shall 
state  particularly  to  whom,  at  what  time,  for  what  cause  and 
by  what  authority  such  transfer  took  place.  The  return  shall 
be  signed  by  the  person  making  the  same,  and  except  where 
such  person  is  a  sworn  public  officer  and  makes  the  return  in 
his  official  capacity,  it  shall  be  verified  by  oath."  ' 

Precedence  siven  to  the  writ. — The  authority  of  all  other 
writs  must  yield  to  the  authority  of  the  writ  of  habeas  corpus. 
Therefore,  from  the  moment  the  sheriff  receives  such  writ,  the 
custody  of  the  petiti<mer  will  be  by  virtue  thereof,  and  not 
under  any  other  writs  he  may  have  previously  received." 

No.  289.     Return  to  a  writ  of  habeas  corpus,  where  the  prisoner  is  in 

custody. 

State  of  Illinois,  \ 

•Jounty  of .      f  "  ' 

I,  F.  H.,  slier  iff  of  said  county,  to  whom  the  within  writ  is  directed,  for 
return  thereto,  say  that  I  have  the  within  named  C.  D.  in  my  custody,  and 
now  bring  his  body  in  court  here  as  commanded;  that  the  cause  of  liis  de- 
tention is,  etc.,  {here  set  forth  the  cause  of  the  detention  at  large,  and  if  in 
custody  by  virtue  of  process,  attach  a  copy). 

{Date.)  F,  H.,  Sheriff  of,  etc. 

No.  290.    Return  to  a  habeas  corpus  denying  detention,  etc. 

State  of  Illinois,  ji 

County  of .      f     * 

I  have  not  now,  and  have  not  had  at  any  time  prior  or  subsequent  to  the 
date  of  the  within  writ,  the  custodj'  or  control  of  tlie  within  named  C.  D., 
wherefore  I  can  not  have  his  body  before  the  court  (or  "  judge")  as  I  am 
therein  commanded. 

{Date.)  F.  H.,  Sheriff  of,  etc. 

'  1  Starr  &  Curtis  1255;  Rev.  Stat.  *  Matson  v.  Swanson,  131  III.  255. 

(1893)  798;   People    v.  Pirfenbrink, 
96  111.  68. 


518  HABEAS   CORPUS. 

No.  291.    Return  to  a  habeas  corpus  hy  a  party  not  an  officer. 

State  of  Illinois,  ) 

County  of .     )     ' 

I,  F.  K.,  to  whom  the'within  writ  is'directed,  have  now  before  the  court 
here  the  body  of  C.  D.,  therein  named,  as  thereby  commanded.  And  for 
cause  of  his  detention  I  aver  that,  etc.  {liere  set  forth  the  ground  of  detention 
at  large). 

(Date.)  F.  K. 

Add  affidavit  as  follows: 
State  of  Illinois,  ) 

County  of .      \  ^' 

F.  K.  makes  oath  and  says  that  the  above  return  by  him  made  is  true  to 
the  best  of  his  knowledge,  information  and  belief. 

Subscribed,  etc.  F.  K. 

Examination. — "  Upon  the  return  of  a  writ  of  habeas 
corpus.,  the  court  or  judge  shall,  without  delay,  proceed  to 
examine  the  cause  of  the  imprisonment  or  restraint,  but  the 
examination  may  be  adjourned  from  time  to  time,  as  circum- 
stances require." 

Denial  of  return,  etc. — "  The  party  imprisoned  or  restrained 
may  deny  any  of  the  material  facts  set  forth  in  the  return,  and 
may  allege  any  other  fact  that  may  be  material  in  the  case, 
which  denial  or  allegation  shall  be  on  oath,  and  the  court  or 
judge  shall  proceed  in  a  summary  way  to  examine  the  cause 
of  the  imprisonment  or  restraint,  hear  the  evidence  produced 
by  any  person  interested  or  authorized  to  appear,  both  in  sup- 
port of  such  imprisonment  or  restraint  and  against  it,  and 
thereupon  shall  dispose  of  the  party  as  the  case  may  require." 

"  The  return,  as  well  as  any  denial  or  allegation,  may  be 
amended  at  any  time  by  leave  of  the  court  or  judge."  ' 

Causes  for  discharge. — If  it  appears  that  the  prisoner  is  in 
custody  by  virtue  of  process  from  any  court,  legally  constituted, 
he  can  be  discharged  only  for  some  of  the  following  causes : 
1st.  Where  the  court  has  exceeded  the  limits  of  its  jurisdiction, 
either  as  to  the  matter,  place,  sum  or  person.  2d.  Where, 
though  the  original  imprisonment  was  lawful,  yet  by  some  act, 
omission,  or  event  which  has  subsequently  taken  place,  the 
party  has  become  entitled  to  his  discharge.  3d.  Where  the 
process  is  defective  in  some  substantial  form  required  by  law. 

'  1  Starr  &  Curxis  1256;  Rev.  Stat.  (1893),  799. 


HABEAS   CORPUS.  519 

4th.  "Where  the  process,  though  in  proper  form,  has  been  issued 
in  a  case,  or  under  circumstances,  where  the  law  does  not  allow 
process,  or  orders  for  imprisonment  or  arrest  to  issue.  5th. 
Where,  although  in  proper  form,  the  process  has  been  issued  or 
executed  by  a  person  either  unauthorized  to  issue  or  execute  the 
same,  or  where  the  person  having  the  custody  of  the  prisoner 
under  such  process  is  not  the  person  empowered  by  law  to  detain 
him.  6th.  Where  the  process  appears  to  have  been  obtained 
by  false  pretense  or  bribery.  7th.  Where  there  is  no  general 
law,  nor  any  judgment,  order  or  decree  of  a  court  to  authorize 
the  process,  if  in  a  civil  suit,  nor  any  conviction,  if  in  a  crim- 
inal proceeding.  "  No  court,  or  judge,  on  the  return  of  a  habeas 
corpus^  shall,  in  any  other  matter,  inquire  into  the  legality  or 
justice  of  a  judgment  or  decree  of  a  court  legally  constituted. 
In  all  cases  where  the  imprisonment  is  for  a  criminal  or  sup- 
posed criminal  matter,  if  it  shall  appear  to  the  said  court,  or 
judge,  that  there  is  sufficient  legal  cause  for  the  commitment 
of  the  prisoner,  although  such  commitment  may  have  been 
informally  made,  or  without  due  authority,  or  the  process  may 
have  been  executed  by  a  person  not  duly  authorized,  the  court, 
or  judge,  shall  make  a  new  commitment,  in  proper  form,  and 
directed  to  the  proper  officer,  or  admit  the  party  to  bail,  if  the 
case  be  bailable."  ' 

Where  the  affidavit  for  a  capias  ad  satisfacieiidum,  in  a  civil 
action,  conforms  to  all  the  requirements  of  the  constitution 
and  statute,  the  court  will  not  go  behind  the  eajnas  and  affi- 
davit, and  inquire  into  the  facts  charged  in  the  latter.*  And 
the  court  has  no  power,  on  habeas  corpus,  to  discharge  a  person 
who  is  imprisoned  under  a  capias  ad  satisfaciendum^  upon  the 
mere  ground  that  he  was  not  sued  by  his  right  name.^ 

In  the  cases  of  wives,  children  and  wards,  all  the  court  does 
is  to  see  that  they  are  under  no  illegal  restraint."  The  object 
in  such  cases  is  not  to  enforce  the  right  of  custody,  but  to  re- 

'  1  Starr  &  Curtis  1257;  Rev.  Stat.  ^Hammond  v.  People,  33   111.  446. 

(1893),   800;     Rev.    Stat.  (1895),  849;  *  1  Strange  445;    2  Strange  982; 

People  V.  Foster,  104  111.  156.  Matter  of  Wollstoncroft,   4  Johns. 

^ Ex  parte  Salisbury,  \^  l\\.  Zm-,  Ch.     80;     People     v.    Skinner,    19 

see  Hammond  v.  People,  32  111.  446;  Bradw.    832;  Ex  parte  Ferrier,  103 

In  re  Smith,  117  lU.  63.  111.  367, 


520  HABEAS   CORPUS. 

move  unlawful  restraint.  The  person  interested  in  the  custody 
will  be  presumed  to  represent  the  wishes  of  the  person  re- 
strained, so  far  as  to  enable  him  to  set  the  remedial  power  of 
the  court  in  motion.  But  the  right,  properly  speaking,  extends 
no  further  than  that.' 

In  the  case  of  infants,  an  unauthorized  absence  from  the  legal 
custody  has  been  treated,  at  least  for  the  purpose  of  allowing 
a  writ  of  habeas  corpus  to  issue,  as  equivalent  to  imprisonment; 
and  the  duty  of  returning  to  such  custody  as  equivalent  to  a 
wish  to  be  free.  And  for  all  legal  purposes  a  child  is  in  the 
custody  of  those  with  whom  it  lives." 

A  father  may  obtain  the  custody  of  his  children,  by  the  writ 
of  habeas  corpus,  where  they  are  improperly  detained  from 
him;  but  the  courts,  both  of  law  and  equity,  will  investigate 
the  circumstances,  and,  according  to  sound  discretion,  do  with 
the  child  as  its  interests  may  require.  Although,  in  general, 
parents  are  intrusted  with  the  custody  of  the  persons,  and  with 
the  education,  of  their  children,  yet  this  is  done  upon  the  nat- 
ural presumption  that  the  children  will  be  properly  taken  care 
of,  and  will  be  brought  up  with  a  due  education  in  literature 
and  morals,  and  that  they  will  be  treated  with  kindness  and 
affection;  but  whenever  this  presumption  is  removed,  when- 
ever, for  example,  it  is  found  that  a  father  is  guilty  of  gross 
ill-treatment  or  cruelty  towards  his  child,  or  that  he  is  in  con- 
stant habits  of  drunkenness  and  blasphemy,  or  low  and  gross 
debauchery,  or  that  his  domestic  associations  are  such  as  tend 
to  the  corruption  and  contamination  of  his  children,  in  every 
such  case  the  court  will  interfere,  and  deprive  him  of  the  cus- 
tody of  his  children.' 

No.  292.     Judge's  order  of  discharge,  in  vacation. 

In  the  matter  of  the  apphcation  of  | 

A.  B.  for  a  writ  of  habeas  coiyus.  )      Be  it  remembered,   that    on  this 

(Jay  of,  etc. ,  in  obedience  to  the  writ  of  habeas  corpus  heretofore  allowed 

by  me  in  this  behalf,  C.  D.,  sheriff,  etc.,  to  whom  the  said  writ  was  dnected, 

iHurd  on  Hab.  Corp.  450;  Matter  ^  Story's  Eq.  Jur.,  Sec.  1345;  Peo- 

of   WoUstoncroft,   4  Johns.  Ch.  80;  pie  v.  3/ermn,  8  Paige  Ch.  47;  Mat- 

People  V.  Mercein,  8  Paige  Ch.  47.  ter  of  WoUstoncroft,  4  Johns.  Ch. 

^3Ierceinv.  I'eople.  25  Wend.  64;  80. 
People  V.  Mercein,  8  Paige  Ch.  47. 


HABEAS   CORPUS.  521 

appeared  before  me,  at,  etc.,  having  with  him  the  body  of  the  said  A.  B., 
together  with  the  said  writ  and  the  retm-n  of  him,  the  said  C.  D.,  thereon. 
Aad  thereupon,  the  allegations  and  proofs  of  the  respective  parties  in  this 
matter  having  been  heard,  and  fully  understood  (*),  and  it  appearing  that 
the  said  A.  B.,  at  the  time  of  the  issuing  and  serving  of  the  said  writ,  was 
unlawfully  detained  by  the  said  C.  D.,  and  ought  not  to  be  remanded  to  his 
custody,  I  do  therefore  order  that  the  said  A.  B.  bs  forthwith  discharged 
and  set  at  liberty,  and  go  hence  without  day,  etc. 

J.  K.,  Judge. 

No.  SOS.    Judge's  order,  in  vacation,  remanding  prisoner. 

(As  in  the  last  precedent,  to  the  asterisk,  and  thence  as  follows:)  and  it  ap- 
pearing that  the  said  A.  B.,  at  the  time  of  the  issuing  and  serving  of  the  said 
writ,  was  lawfully  detained  by  the  said  C.  D. ,  for  the  cause  set  forth  in  the 
saidreturn;  and  it  further  appearing  that  the  said  A.  B.  ought  not  to  be  dis- 
charged, but  ought  to  be  remanded  to  the  custody  of  tiie  said  C.  D. ,  for  the 
reason  that  (the  said  A.  B.  is  probably  guilty  of  feloniously  stealing,  taking 

and  carrying  away,  on,  etc.,  in,  etc.,  one  watch,  of  the  value  of dollars, 

the  property  of  one  G.  H."):  I  do  therefore  order,  that  the  said  A.  B.  be  re- 
manded to  the  custody  of  the  said  C.  D.,  sheriff  as  aforesaid  {if  admitted  to 

hail,  add),  unless  bail  be  given  by  the  said  A.  B.  in  the  sum  of dollars, 

at  which  sum  the  bail  in  this  behalf  is  fixed. 

J.  K.,  Judge. 

No.  S94.    Order  of  discharge,  by  tlie  court,  in  term. 

(Title  of  cause  as  in  No.  292,  ante.)  And  now  on  this  day  here  comes  the 
said  C.  Jy.,  sheriff,  etc.,  to  whom  the  said  writ  of  habeas  corpus  in  this  be- 
half was  directed,  and  has  now  here  in  court  the  body  of  the  said  A.  B.,  to- 
gether with  the  said  writ  and  the  return  of  him,  the  said  C.  D.,  therean. 
And  thereupon,  the  allegations  and  proofs  of  the  respective  parties  in  this 
matter  being  heard  and  examined,  and  the  court  being  fully  advised  in  the 
premises;  ( * )  and  it  appearing  to  the  court  that  the  said  A.  B. ,  at  the  time 
of  the  issuing  and  serving  of  the  said  writ,  %vas  unlawfully  detained  by  the 
said  C.  D. ,  and  ought  not  to  be  remanded  to  his  custody :  It  is  therefore 
ordered  by  the  court  that  the  said  A.  B,  be  forthwith  dischai'ged  and  set  at 
liberty,  and  go  hence  without  day,  etc. 

No.  295.     Order  of  court,  in  term,  remanding  prisoner,  etc. 

{As in  tlie  last  precedent  to  the  asterisk,  and  thence  as  follows:)  and  it 
appearing  to  the  court  that  the  said  A.  B.,  at  the  time  of  the  issuing  and 
serving  of  the  said  writ,  was  lawfully  detained  by  the  said  C.  D.,  for  the 
cause  in  the  said  return  mentioned:  and  it  further  appearing  to  the  court 
that  the  said  A.  B.  ought  not  to  be  discharged,  but  ought  to  be  remanded  to 
the  custody  of  the  said  C.  D.,  for  the  reason  that  {here  set  forth  the  cause 
or  causes  for  remanding  the  prisoner):  It  is  therefore  ordered  by  the  court, 
that  the  said  A.  B.  be  remanded  to  the  custody  of  the  said  C.  D. ,  sheriff  as 
aforesaid  {if  admitted  to  bail,  add)  unless  bail  be  given  by  the  said  A.  B.,  in 


522  HABEAS   CORPUS. 

tlip  sum  of dollars,  at  which  sum  the  bail  in  this  behalf  is  fixed.     {Tf 

hail  is  thereupon  given,  proceed:)  And  thereupon  the  said  A.  B.  as  princi- 
pal, and  O.  P  ,  as  surety,  in  open  court  jointly  and  severally  acknowledge 
themselves  to  be  indebted  to  the  people,  etc.,  etc. 

It  might  be  profitable  to  consider  the  subject  of  liahem  cor- 
pus more  at  length  and  in  detail,  but  it  would  be  foreign  to 
the  plan  and  purpose  of  the  work.  The  subject  is  very  fully 
and  learnedly  treated  in  the  valuable  work  usually  cited  as 
Ilurd  oil  Habeas  Cokpus. 


CHAPTER  Xy. 

SCIRE  FACIAS. 

A  scire  facias  is  a  writ  founded  upon  some  record;  and  its 
office  is  to  make  known  to  the  defendant  some  matter,  of 
which  he  has  a  right  to  be  informed,  and  to  afford  him  an 
0}3portunity  to  show  cause  why  a  certain  step  should  not  be 
taken  against  him. 

The  scire  facias  against  a  bail,  against  pledges  in  replevin, 
to  re])eal  letters  patent,  or  the  like,  is  an  original  proceeding; 
but  when  brought  to  revive  a  judgment  after  a  vear  and  a  day, 
or  upon  the  death  or  marriage  of  the  parties,  when  in  the  latter 
case  one  of  them  is  a  woman,  or  when  brought  on  a  judg- 
ment quando,  etc.,  against  an  executor,  it  is  but  a  continua- 
tion of  the  original  action.' 

In  Illinois,  the  writ  is  considered  both  as  process  and  declara- 
tion, and  defects  therein  can  be  reached  by  demurrer.'  Like 
all  other  process,  it  should  run  in  the  name  of  "  the  People  of 
the  State  of  Illinois,"  and  if  it  does  not  it  is  void  on  its  face; 
and  the  objection  can  be  raised  by  general  demurrer,  though 
the  more  proper  mode  is  by  motion  to  quash  the  writ.' 

A  dissolution  of  a  corporation,  for  cause  of  forfeiture,  may 
be  effected  by  scire  facias,  where  such  corporation  is  a  legal, 
existing  body,  but  has  been  guilty  of  an  abuse  of  the  power 
intrusted  to  it.* 

'Bouv.   L.  Diet.   499;    Bac.  Abr.  People,  86  III.  176;  Wilson  \.  Tnist- 

Ex,  H.  ees,  144  III.  29. 

'^  Smith  V.  Stevens,  133  111.  183;  ^  McFaddenx.  For  tier,  20  IW.  509; 
Marshall  v.  Maury,  1  Scam.  231;  Reddick  v.  Cloud,  2  Gilm.  670;  see 
McFadden  v.  Fortier,  20  111.  509;  see  Ferris  v.  Croiv,  5  Gilm.  96. 
Rev.  Stat.  (1893)  1074;  Rev.  Stat.  *  A'mfirv.  Passmore.3T.  R  245;  see 
(1895)  1158;  2  Starr  &  Curtis  1789;  Baker  v.  Backus,  32  111.  110;  Dan- 
Wood  v.  Peojile,  16  111.  171;  Laio-  ville  Sem.  v.  Mott,  136  111.  289; 
rencev.  People,  17  111.  172;  Chnllenor  Com  v.  GriJJin,  134  111,  330. 
V.   Niles,   78    111.   78;    Covipton   v. 

(523) 


524:  SCIEE    FACIAS. 

To  make  party  to  ju(l;?nient. — The  statute  of  Illinois  pro- 
vides, that  "if  a  summons  or  capias  is  served  on  one  or  more, 
but  not  on  all  the  defendants,  the  plaintiff  may  proceed  to 
trial  against  the  defendant  or  defendants  on  whom  the  process 
is  served,  and  the  plaintiff  may,  at  any  time  afterwards,  have 
a  summons  in  the  nature  of  scire  facias,  against  the  defendant 
not  served  with  the  first  process,  to  cause  him  to  appear  in 
said  court,  and  show  cause  why  he  should  not  be  made  a 
party  to  such  judgment;  and  upon  such  defendant  being  duly 
served  with  such  process,  the  court  shall  hear  and  determine 
the  matter  in  the  same  manner  as  if  such  defendant  had  been 
originally  summoned  or  brought  into  court,  and  such  defend- 
ant shall  also  be  allowed  the  benefit  of  any  payment  or  satis- 
faction which  may  have  been  made  on  the  judgment  before 
recovered,  and  the  judgment  of  the  court  against  such  defend- 
ant shall  be  that  the  plaintiff  recover  against  such  defendant, 
together  with  the  defendant  in  the  former  judgment,  the 
amount  of  his  debt  or  damages,  as  the  case  may  be."  ' 

In  Illinois,  a  writ  of  attachment  may  issue  in  aid  of  a  scire 
facias  to  make  a  person  ])arty  to  a  judgment,  upon  the  same 
terms  as  in  other  cases  mentioned  in  the  attachment  act.'' 

A  scire  facias  to  make  a  party  to  a  judgment  is  not  an 
original  action.  Such  writ  may  issue  at  any  time,  without  an 
order  of  court.*  The  plaintiff  may  w^pjt  until  it  is  found  that 
the  amount  of  the  judgment  can  not  be  made  of  the  defend- 
ant against  whom  judgment  has  been  rendered.* 

Scire  facias  against  garnishees. — The  statute  of  Illinois 
provides  that  when  any  person  shall  have  been  summoned  as 
a  garnishee  upon  any  attachment,  or  other  writ  issued  out  of 
a  court  of  record,  and  shall  fail  to  appear  or  make  discovery, 
as  required  by  the  statute,  the  court  may  enter  a  conditional 
judgment  against  such  garnishee  for  the  amount  of  the  plaint- 
iff's demand,  or  of  the  judgment  against  the  original  defend- 

J2  Starr  &  Curtis,  1779;  Rev.  Stat  »  Tiffany  v.  Breese,  3  Scam.  499; 

(1893),  1072;  Rev.  Stat.  (1895)   1156;  Ryder  \.  Glover,  3  Scam.  547;  Cour- 

Coursen  v.  Hixon,  78  111.  339.  sen  v.  Hixon,  78  111.  339;  Parker  v. 

2 1  Starr  &  Curtis,  323;  Rev.  Stat.  31  fg.  Co.,  9  Bradw.  383. 

(1893),  173;    Rev.    Stat.  (1895),    177;  *Jolmson  v.  Baell,  20  111  QQ. 
Ryder  v.  Glover,  C  Scam.  547. 


SCIRE    FACIAS.  525 

ant;  and  thereupon  a  scire  facias  shall  issue  against  such 
garnishee,  returnable  at  the  next  term  of  court,  commanding 
such  garnishee  to  show  cause  why  such  judgment  should  not 
be  made  final.* 

Scire  facias  to  revive  judgment. — A  judgment  of  a  court 
of  record  may  be  revived  by  scire  facias,  or  an  action  of  debt 
may  be  brought  thereon.-  "  Judgment  in  any  court  of  record 
in  this  state  may  be  revived  by  scire  facias,  or  an  action  of 
debt  may  be  brought  thereon  within  twenty  years  next  after 
the  date  of  such  judgment,  and  not  after."  ^  The  act  of  Feb- 
ruary 14,  1855,  which  provided  that  an  administrator  cle  honis 
non,  or  with  the  will  annexed,  might  revive,  in  his  own  name, 
a  judgment  recovered  by  a  deceased  executor  or  administra- 
tor,* is  repealed  by  the  present  statute  of  wills." 

A  revival  of  judgment  upon  publication  and  mailing  notice 
as  provided  in  section  26  of  the  Practice  Act  would  not  be 
vahd  against  a  non-resident  of  the  state." 

When  a  judgment  debtor  dies  after  the  expiration  of  the 
seven  years'  lien  provided  by  the  statute  of  Illinois,  his  heirs, 
to  whom  his  real  estate  descends,  can  not  be  divested  thereof 
except  in  the  mode  provided  bylaw,  by  a  proceeding  to  which 
they  are  parties.  In  such  case,  the  creditor  may  obtain  satis- 
faction of  the  judgment  out  of  such  real  estate  in  the  hands 
of  the  heirs,  by  proceeding  by  scire  facias  to  revive  the  judg- 
ment, making  the  heirs  parties,  and  then  suing  out  an  exe- 
cution upon  the  judgment  of  revival,  and  having  the  realty 
sold.' 

'1  Starr  &  Curtis,  1224;  Rev.  Stat.  (1893)  942;  Supervisors   v.   Gordon, 

(1893)  782;  Rev.  Stat.  (1895)  831;  see  82  III.  435;   Rev.    Stat.  (1895)  1004: 

Webster  v.  Steele,  75  111.  544;  R.  R.  Smith  v.  Stevens,  138  lU.  183. 
Co.  V.  Reynolds,  72  111.  487;  Rickey  '•Gross'  Stat.  811. 

V.  Davis,  9  Bradw.   362;  R.  R.  Co.  ^Rev.  Stat.  (1893)  1396:  Rev.  Stat. 

V.  Hindman,  85  III.  521.  (1895)  1494;  Starr  &  Curtis,  2342. 

23  Blacks.  Com.  421;  see  Reynolds  ^  Bicker  dike  v.  Allen,  157  111.  95. 

\.  Henderson,  2  QWm.WX;  Scammon  '^  Scammon  v.  Sicartwoiit,  35  111. 

V.  Sirartwout,  35   111.  326;  Gibbons  326;  Reynolds  v.  Henderson,  2  Gihu. 

v.  Goodrich,  3  Bradw.  590.  111. 

^2  Starr  &  Curtis,  1559;  Rev.  Stat. 


52G  SCIKE   FACIAS. 

No.  296.    Praecipe  for  a  scire  facias  to  revive  a  judgment. 

In  the Court. 

A.  B.  ) 
vs.     >  Assutnj)sit. 

C.  D.  )      The  clerk  of  the  said  court  will  issue  a  scire  facias  against  the 
said  C.  D.,  to  revive    the  judgment  rendered  in  this  behalf  against  him 

in  the  said  court,  in  the term,  18 — ;  such  writ  to  be  directed  to  the 

sheriff  of  the  county  of ,  and  returnable  to  the  next  term  of  the  said 

court. 

{Date.) 

E.  F.,  Attorney  for  Plaintiff. 

ToL.  M.,  Clerk,  etc. 

No.  297.    Scire  facias  to  revive  a  judgment. 

The  People  of  the  State  of  Illinois,  to  the  sheriff  of  the  county  of , 

greethig  : 

Whereas  A.  B.  heretofore,  in  our court  of  the  said  county  of ,  in 

the term  thereof,  in  the  year  18 — ,  to  wit,  on,  etc.,  in  the  same  year, 

by  the  consideration  and  judgment  of  the  same  court  recovered  against  C. 

D.,  in  a  certain  action  of ,  the  sum  of dollars,  damages,  {or  "  the 

sum  of dollars,  debt,  and  the  further  sum  of dollars,  damages  for 

the  detention  thereof,"  according  to  the  record,)  and  also  the  costs  of  the 

said  A.  B.  in  that  behalf,  taxed  at  the  sum  of dollars,  whereof  the  said 

C,  D.  was  convicted,  .as  appears  to  us  of  record  :  And  now  on  the  behalf 
of  the  said  A.  B.  we  have  been  informed,  that  although  judgment  was  given 
as  aforesaid,  yet  execution  of  the  damages  {or  "  debt,  damages  "')  and  costs 
aforesaid  still  remains  to  be  made  to  him,  wherefore  the  said  A.  B.  has  be- 
sought us  to  provide  him  a  pi'oper  remedy  in  this  behalf.  We  do  therefore 
command  you,  that  you  make  known  to  the  said  C.  D.  that  he  be  before 

our  said court,  at  the  court  house  in ,  in  the  county  aforesaid,  on 

the Monday  of next,  to  show  cause,  if  any  he  have,  why  the  said 

A.  B.  ought  not  to  have  execution  against  him,  the  said  C.  D.,  of  the  dam- 
ages {or  "debt,  damages")  and  costs  aforesaid,  according  to  the  form  and 
effect  of  the  said  recovery  :  And  have  you  there  then  this  writ. 

Witness,  R.  S.,  clerk  of  our  said  court,  and   the   seal  thereof,  at 

aforesaid,  this day  of ,  in  tlie  year  18 — . 

[L.  s.]  R.  S. 

See  a  scire  facias  against  heirs  and  terre-tenants,  35  111. 
377. 

It  is  not  necessary  that  a  scire  Jacias  to  revive  a  judgment 
should  show  that  no  execution  issued  within  one  year  after 
the  rendition  of  the  judgment.' 

Where  a  judgment  has  been  obtained  by  the  people,  it  is 

^AlUn  V.  People,  46  111.  372. 


SCIRE    FACIAS.  527 

n©t  essential  that  execution  should  issue  within  the  year,  in 
order  to  authorize  the  issuing  of  execution  after  ^  that  time. 
But  a  scir^e  facias  will  lie  on  such  judgment,  notwithstanding 
execution  could  issue  thereon  at  the  same  time.' 

No.  298.    Scire  facias  to  revive  a  judgment  in  ejectment. 

The  People  of  the  State  of  Illinois,  to  the  sheriff  of  the  county  of 

greeting : 

Whereas,  A.  B. ,  heretofore,  in  our court  of  said  county  of  ,  in 

the term  thereof,  in  the  year  18 — ,  to  wit,  on,  etc.,  in  the  same  year, 

by  the  consideration  and  judgment  of  the  same  court  recovered  against  C. 
D.  in  a  certain  action  of  ejectment,  a  judgment  for  the  following  piece  or 
parcel  of  land,  to  wit,  {here  describe)  which  said  court  found  that  said  C.  D. 
was  guilty  of  unlawfully  withholding;  and  whereas  the  said  court  further 
found  (*)  the  fee  simple  title  to  said  premises  to  be  in  the  said  A.  B.,  the 
plaintiff  in  said  action;  and  whereas  the  said  court  therefore  ordered  that 
the  said  A.  B. ,  plaintiff,  have  a  writ  of  possession  (*)  for  said  described  prem- 
ises, and  that  the  said  A.  B.  have  judgment  against  the  said  C.  D.  for  his 

costs  in  that  behalf,  taxed  at  the  sum  of dollars,  whereof  the  said  C.  D. 

stands  convicted,  as  appears  to  us  of  record;  and  now  on  behalf  of  said  A. 
B.  we  have  been  informed  that  the  said  judgment  remains  in  full  force  and 
effect,  imreversed  and  unsatisfied  (**)  and  that  no  writ  of  possession  has 
ever  issued  in  conformity  to  the  said  order  of  court  therein,  and  although 
said  judgment  was  given  as  aforesaid,  yet  no  execution  upon  said  judgment 
or  costs  hath  ever  been  made,  and  that  execution  of  said  judgment  and 
costs  remains  to  be  made  to  the  said  A.  B.,  plaintiff;  wherefore  the  said  A. 
B.  has  besought  us  to  provide  him  a  proper  remedy  in  this  behalf.  We  do 
therefore  command  you  that  you  make  known  to  the  said  C.  D.  that  he  be 
before  our  said court,  at  the  court  house  in in  the  countj^  afore- 
said, on  the Monday  of next,  to  show  cause,  if  any  he  have,  why 

the  said  A.  B.  ought  not  have  execution  made  to  him  of  his  said  judgment, 
according  to  the  form  and  effect  of  the  said  recovery;  and  have  you  then 
and  there  this  writ,  > 

Witness,  etc.,  R.  B.,  Clerk. 

If  the  recovery  was  had  for  a  term  of  years  only,  omit  all 
between  the  asterisks  in  above  precedent  and  insert,  in  lieu 
thereof,  the  following,  viz.: 

"  The  plaintiff,  the  said  A.  B.,  to  he  entitled  to  his  term  then  a7id  yet  to 
come,  of  and  in  the  said  above  described  preynises,  beginning  on.  etc.,  and 
ending  on,  etc.,  and  the  said  court  therefore  ordered  that  the  said  A.  B., 
plaintiff,  have  a.  ivrit  of  possession  of  his  term  yet  to  come."  And  insert, 
also  at  (**),  the  following  :  "  that  said  title,  iti  said  judgment  ntentioned, 
has  not  yet  expired.'^   , 

»  People  V.  Peck,  4  Scam.  404;  Al-         » Albin  v.  People,  43  111.  Z'2. 
bin  V.  People,  46  111.  372. 


528  SCIEE   FACIAS. 

Where  the  allegations  of  a  scire  facias  to  revive  a  judgment 
in  ejectment  affirmatively  show  that  the  judgment  sought  to 
be  revived,  not  only  adjudged  the  plaintiff  to  be  entitled  to 
the  possession  of  the  premises,  but  also  to  be  the  owner 
thereof  in  fee  simple;  that  the  recovery  was  not  for  a  term  of 
years,  but  for  the  entire  estate;  that  such  judgment  remained 
unexecuted,  and  that  execution  therein  remained  to  be  made 
to  the  plaintiff,  the  same  will  be  sufficient  to  entitle  the  plaint- 
iff to  judgment  of  revival.  The  plaintiff  need  not  allege  that 
he  has  not  parted  with  his  title  by  conveyance.  The  scire 
facias  need  not  aver  in  terms  that  the  title  of  the  plaintiff  has 
not  expired,  where  the  judgment  recites  that  the  recovery  was 
for  the  fee  simple  title,  and  not  for  a  term  of  years.' 

The  defendant  can  not  avail  himself  of  an  outstanding  title 
in  a  third  person.  The  only  defense  on  the  trial  of  a  scire 
facias  on  a  judgment  is  a  denial  of  the  existence  of  the  judg- 
ment, or  proof  of  a  subsequent  satisfaction  or  discharge 
thereof.  Whether  there  is  an  outstanding  paramount  title  in 
some  third  person  is  immaterial." 

Foreclosure  of  mortgage. — It  is  provided  in  section  17  of 
the  chapter  entitled  "  Mortgages,"  that 

"  If  default  be  made  in  the  payment  of  any  sum  of  money 
secured  b}'^  mortgage  on  lands  and  tenements,  duly  executed 
and  recorded,  and  if  the  payment  be  by  installments,  and  the 
last  shall  have  become  due,  it  shall  be  lawful  for  the  mort- 
gagee, his  assigns,  or  his  or  their  executors  or  administrators, 
to  sue  out  a  writ  of  scire  facias  from  the  clerk's  office  of  the 
circuit  court  of  the  county  in  which  the  said  mortgaged  prem- 
ises may  be  situated,  or  any  part  thereof,  directed  to  the 
sheriff  or  other  proper  officer  of  any  county  or  counties  where 
the  defendants,  or  any  of  them,  may  reside  or  be  found,  re- 
quiring him  to  make  known  to  the  mortgagor,  or,  if  he  be 
dead,  to  his  heirs,  executors  or  administrators,  to  show  cause, 
if  any  they  have,  why  judgment  should  not  be  rendered  for 
such  sum  of  money  as  may  be  due  by  virtue  of  said  mort- 
gage; and  upon  the  appearance  of  the  party  named  as  a  de- 

1  Wilson  V.  Trustees  of  Schools,         ^  Smith  v.  Stevens,  133  DL  183. 
144  111.  29. 


SCIEE   FACIAS.  529 

fendant  in  said  writ  of  scire fac'ma  the  court  may  proceed  to 
judgment  as  in  other  cases,  but  if  said  scire  facias  be  returned 
nihil,  or  that  the  defendant  is  not  found,  an  alias  scire  facias 
may  be  issued."  ' 

Prior  to  the  amendment  of  the  section  quoted  by  the  re- 
vision of  1874,  an  assignee  of  a  mortgage  could  not  have  a 
scire  facias  thereon  in  his  own  name; "  but  the  assignment 
of  a  note  and  mortgage  did  not  prevent  a  foreclosure  by  this 
proceeding  in  the  name  of  the  mortgagee  for  the  use  of  the 
assignee,  the  proceedings  being  upon  the  record  of  the  mort- 
gage, and  not  upon  the  note. 

Jurisdiction  of  foreclosure  by  a  scire  facias  rests  upon  mort- 
gage duly  executed  and  recorded;  and  is  not  impaired  by  a 
destruction  of  the  record.'  The  relation  of  a  mortgagor  and 
mortgagee  is  not  terminated  by  such  proceedings  until  the 
time  of  redemption  expires  and  the  foreclosure  is  complete; 
nor  can  the  purchaser  maintain  a  possessory  action  until  the 
expiration  of  the  period  for  redemption.* 

As  has  been  seen  from  the  section  quoted,  the  remedy  by 
scire  facias  to  foreclose  a  mortgage,  is  now  given  by  statute  to 
the  "mortgagee,  his  assigns,  his  or  their  executors  or  admin- 
istrators." It  is  not  essential  to  the  right  of  an  assignee  of  the 
mortgage  to  foreclose  by  this  remedy  that  the  assignment 
should  be  acknowledged,' 

The  wife  of  the  mortgagor,  if  she  joined  in  the  mortgage, 
should  be  made  a  party  defendant,  in  order  to  bar  equit}^  of  re- 
demption and  right  of  dower.'  The  proceeding  by  scire  facias 
for  a  foreclosure  is  a  proceeding  at  law,  and  is  governed  by  the 
practice  of  courts  of  law,  and  not  of  courts  of  equity,  None 
but  the  mortgagor,  or,  in  case  of  his  death,  his  heirs,  executors  or 
administrators,  should  be  made  parties  defendant.  Assignees  in 
bankruptcy,  subsequent  purchasers  and  mortgagees,  etc.,  are 

'2  Starr  &  Curtis  1642;  Rev.  Stat.  "^  Alvis  v.  Morrison,  63  111.  181. 

(1893)  989;  Rev,  Stat.  (1895)  1056,  * Rockivell  \ .  Servant,  63  111.  424. 

^Olds  V.  Ciimmings,   31  111.   188;  ^  Honore  v.  Wilshire,  109  111.  103; 

Camp  V.  Sviall,  44  111.  37;  Winchell  see  Ogle  v.  Turpin,  102  111.  148. 

V.  Edwards,  57  111.  45;  Bourland  v.  «  Camp  v.  Small,  44  111,  37;  Dayw 

Kipp,  55  111.  376.  Cushman,  1  Scam.  475. 
34 


530  SCIRE    FACIAS. 

bound  to  take  notice  of  the  proceeding,  and  failing  to  do  so, 
their  rights  are  not  protected.' 

Two  returns  of  nihil  are  in  general  equivalent  to  a  service;^ 
and  this  rule  applies  in  scire  facias  on  a  mortgage.*  This 
remedy  applies  only  to  mortgages  made  to  secure  the  payment 
of  money.  It  does  not  extend  to  mortgages  made  to  secure 
the  delivery  of  specific  articles  of  property,  or  the  performance 
of  other  acts." 

The  proceeding  is  in  rem^  to  enforce  a  specific  lien,  and  is 
not  for  the  purpose  of  obtaining  a  judgment  in  personam.  The 
judgment  only  directs  the  sale  of  the  mortgaged  property,  to 
satisfy  the  debt  and  costs,  and  is  not  a  lien  on  any  other 
property.* 

No.  299.     Scire  facias  on  a  mortgage.^ 

The  People  of  the  State  of  IlUnois,  to  the  sheriff  of  the  county  of , 

greeting : 

Whereas  C.  D.  and  E.  D.,  his  wife,  on,  etc.,  by  their  deed  of  that  date, 
duly  executed,  did  grant,  bargain,  sell  and  convey  to  A.  B.,  his  heire  and 
assigns,  a  certain  parcel  of  land,  situate  in  tlie  county  aforesaid,  to  wit, 
{here  describe  the  land) ;  to  have  and  to  hold  the  same,  with  its  appurte- 
nances, unto  him,  the  said  A.  B.,  his  heirs  and  assigns,  forever;  and  did 
thereby  also  release  unto  him  and  his  heirs  and  assigns  all  right  of  home- 
stead of  thera,  the  said  C.  D.  and  E.  D.,  in  tlie  said  parcel  of  land;  yet  upon 
the  condition  that  if  the  said  C.  D.,  his  heirs,  executors,  or  administrators, 
should  well  and  truly  pay,  or  cause  to  be  paid,  to  the  said  A.  B.,  his  heirs, 

executors,  administrators,  or  assigns,  the  sum  of  dollars, 

after  the  date  aforesaid,  with  interest  thereon  at  the  rate  of per  centum 

per  annum,  according  to  the  tenor  and  effect  of  a  certain  promissory  note 
of  the  said  C.  D.,  of  tlie  date  first  afoi'esaid,  then  the  said  deed  should  be 
void,  otherwise  should  remain  in  full  force;  as  by  the  record  of  the  said 
deed,  remaining  in  the  office  of  our  recorder  of  deeds  for  the  county  afore- 
said (in  which  office  the  said  deed  was  on,  etc.,  duly  recorded),  more  fully 
appears.  And  whereas  we  are  informed  by  the  said  A.  B.,  that  default  has 
been  made  in  the  payment  of  the  said  sum  of  money,  with  the  interest 

^CMckeringY.  Failes,  26  111.507;  'Woodbury    v,    Manlove,    14   III, 

Bank  v.  Wilson,  4  Gilm,  57.  213;  Carpenter  v.  Mooers,  26  111.  162; 

^ Sans  y.  People,  ^GWm.Z'il;  Best-  see    Osgood  v.  Stevens,   25   111,    89; 

mer  v.  People,  15  111.  440;  Choats  v.  White  v.  Watkins,  23  111.  480. 

People,  19   111.    63;    Chickering    v.  ^  See  Woodbury  x .  Manlove,  lilW. 

Failes,  26  111.  507;  see  Lytle  v.  People,  213;  Mitchelltree  v.  Steward,  2  Scam . 

47  111.  422.  18;    McFadden  v.   Fortier,  20    111. 

^  Cox  V.  McFerron,  Breese  28.  509. 

*  McCumher  v.  Gilman,  13  111.  543. 


SCIRE    FACIAS.  531 

thereof,  as  aforesaid,  and  that  the  same,  with  such  interest,  is  in  arrear  and 
unpaid,  contrary  to  the  form  and  effect  of  the  said  condition  of  the  deed 
aforesaid:  (*)  We  do  therefore,  according  to  the  form  of  the  statute  in 
such  case  made  and  provided,  command  you,  that  you  make  known  to  the 
said  C.  D.  and  E.  D.  that  they  be  before  our  circuit  court,  at  the  court  house 

in ,  in  the  county  aforesaid,  on  the Monday  of next,  to  show 

cause,  if  any  they  have,  why  judgment  should  not  be  rendered  against 
them  in  favor  of  the  said  A.  B.,  for  such  sum  of  money  as  may  be  due  by 
vii-tue  of  the  said  deed :    And  have  you  there  then  this  writ. 

Witness,  R.  S. ,  clerk  of  our  said  court,  and  the  seal  thereof,  at afore- 
said, this day  of ,  in  the  year  18 — . 

[L.  s.]  R.  s. 

If  the  scire  facias  is  against  the  heirs,  etc.,  of  the  mortgao-or, 
insert,  at  the  asterisk  in  the  above  precedent,  an  averment 
like  the  following :  "  And  whereas  we  are  further  informed 
by  the  said  A.  B.,  that  afterwards,  to  wit,  on,  etc.,  the  said  C. 

D.  departed  this  life,  intestate,  leaving  him  survivino-  the  said 

E.  D.,  his  widow,  and  F.  D.  and  G.  D.  his  children  and  heirs 
at  law;  and  that  O.  S.  was  thereupon,  by  the  county  court  of 
the  county  aforesaid,  appointed  administrator  of  the  estate  of 
the  said  deceased."  The  writ  will  then  proceed  to  command 
the  sheriff  to  "  make  known  to  the  said  E.  D.,  F.  D.,  G.  D., 
and  O.  S.,"  etc. 

It  is  sufficient  to  set  out  a  copy  of  the  mortgage,  with  the 
certificates  of  acknowledgment  and  recording  annexed,  with- 
out any  direct  allegation  that  the  mortgage  was  acknowl- 
edged or  recorded.'  If  the  mortgage  debt  is  pavable  by 
installments,  the  writ  must  show  that  the  last  instalhnent  has 
become  due.^  And  it  must  show  a  breach,  by  non-payment  of 
the  debt,  as  well  as  every  other  substantial  matter  required  in 
a  declaration.  If  it  fails  in  any  of  these  respects,  it  is  obnox- 
ious to  a  demurrer.^ 

No.  300.     Another  form  of  scire  facias  on  a  mortgage. 

The  People  of  the  State  of  Illinois,  to  the  sheriff  of  the  countj-  of 

greeting: 
Whereas  on,  etc.,  a  certain  deed  of  mortgage  was  duly  recorded  in  the 

'  Mitchelltree  v.  Steward,  2  Scam.  '  Osgood  v.  Stevens,  25  111.  89;  see 

18.  Miichelltreev.  Steicard,  2  Scam.  18; 

'  Day  V.  Cushman,  1  Scam.  475;       Woodbwy  v.  Manlove,  14  111.  213. 
Osgood  V,   Stevens,  25  111.    89;  see 
Mitchelltree  v.  Steward,  2  Scam.  18. 


532  SCIRE   FACIAS. 

office  of  our  recorder  of  deeds  for  the  county  aforesaid,  which  said  deed,  as 
appears  by  us  to  the  record  thereof,  remaining  in  the  said  office,  is  in  these 
words  and  figures,  that  is  to  say:    (Here  insert  a  copy  of  the  mortgage.) 

And  whereas  we  are  informed  by  the  said  A.  B.  that  default  lias  been 
made  in  the  payment  of  the  sum  of  money  and  interest  in  the  said  deed 
mentioned,  and  that  the  same  are  in  arrear  and  unpaid,  contrary  to  the 
form  and  effect  of  the  said  deed. 

We  do  therefore,  according  to  the  form  of  the  statute  in  such  case  made 
and  provided,  command  yoii  {as  in  the  last  precedent  to  the  end). 

Oil  recoffiiizaiices. — The  statute  of  Illinois  provides  that 
"  in  all  cases  of  bail  for  the  appearance  of  any  person  or  per- 
sons charged  with  any  criminal  offense,  the  security  or  any  of 
them  may,  at  any  time  before  default  upon  the  bond  or  recog- 
nizance, surrender  the  principal  in  their  exoneration  or  the 
principal  may  surrender  himself  to  the  pro])er  officer. 

"  When  any  person  who  is  accused  of  any  criminal  offense 
shall  give  bail  for  his  appearance,  and  such  person  does  not 
appear  in  accordance  with  the  terms  of  the  recognizance,  the 
court  shall  declare  such  recognizance  forfeited,  and  the  clerk 
of  the  court  shall  thereupon  issue  a  scire  facias  against  such 
person  and  his  sureties,  returnable  on  the  first  day  of  the  next 
term  of  the  court,  to  show  cause  why  such  judgment  should 
not  be  rendered  against  such  person  and  his  sureties  for  the 
amount  of  the  recognizance,  which  scire  facias  shall  be  served 
bv  the  sheriff  of  the  county  where  the  court  is  held,  upon  such 
person  and  his  sureties,  by  reading  the  same  to  the  defendants 
named  in  such  scire  facias,  at  least  five  days  before  the  first 
day  of  the  term  to  Avhich  the  same  is  returnable,  and,  in  case 
the  person  aforesaid  can  not  be  found  by  the  sheriff,  he  shall 
make  return  of  that  fact  to  the  court.  The  court  shall  there- 
upon enter  judgment  by  default  against  the  defendants  for 
the  amount  of  the  recognizance,  unless  defendant  shallappear 
and  defend  such  cause;  and  if  the  defendant  shall  appear  and 
interpose  a  defense,  then  the  case  shall  be  tried  in  the  same 
manner  as  other  cases  of  a  like  nature,  after  any  such  recog- 
nizance shall  be  declared  forfeited  as  aforesaid.  Before  judg- 
ment the  court  may,  in  its  discretion,  set  aside  such  forfeiture, 
upon  the  accused  being  brought  or  coming  into  court,  and 
showino-  to  the  court,  by  affidavit,  that  he  was  unable  to  ap- 
pear in  court  according  to  the  terms  of  the  recognizance,  by 


SCIRE   FACIAS.  533 

reason  of  sickness  or  some  other  cause  which  shall  satisfy  the 
court  that  the  accused  had  not  been  guilty  of  any  laches  or 
negligence :  Provided^  that  no  such  forfeiture  of  a  recogni- 
zance shall  be  set  aside  until  the  accused  shall  pay  the  costs  of 
such  recognizance." ' 

An  offer  to  pay  costs  is  not  a  literal  compliance  with  the 
statute  requiring  the  accused  to  pay  all  costs  made  on  the  re- 
cognizance before  a  default  is  set  aside;  and  even  if  the  court 
has  the  power  to  permit  the  costs  to  be  paid  after  the  entry 
of  a  motion  to  set  aside  the  forfeiture,  the  statute  has  made 
the  setting  aside  the  same  discretionary.  ^ 

A  recognizance,  conditioned  that  the  principal  shall  be  and 
appear  before  the  court,  etc.,  on  the  first  day  of  the  term 
thereof  to  be  holden  at,  etc.,  to  answer  unto  a  certain  crime 
(stating  it,)  and  abide  the  order  of  the  court,  and  not  depart 
without  leave,  requires  the  accused  to  appear  on  the  first  day 
of  the  next  term,  and  from  day  to  day  during  the  term,  and 
from  term  to  term,  and  f rOm  day  to  day  of  each  term,  until  the 
final  sentence  or  order  of  the  court,  to  answer  the  specified 
charge.  And  a  forfeiture  may  be  declared,  even  though  two 
terms  may  have  elapsed  from  the  time  to  which  the  principal 
was  required  to  appear.^ 

No.  301.    Scire  facias  on  a  recognizance  made  in  open  court,  after  indict- 
ment found. 

The  People  of  the  State  of  Illinois,  to  the  sheriff  of  the  county  of  , 

gi'eeting  : 

Whereas  heretofore,  in  the term  of  our court  of  the  said  county 

of ,  in  the  year  18 — ,  C  D.,  J.  K.  and  L.  IVL  personally  came  into  our 

said  court,  and  then  and  there  jointly  and  sevex'ally  acknowledged  them- 
selves to  be  indebted  to  us  in  the  sum  of dollars,  to  be  levied  of  their 

respective  goods  and  chattels,  lands  and  tenements,  as  the  law  directs;  yet 
upon  the  condition  that  if  the  said  C.  D,  should  personally  appeal-  before 
our  said  court,  on  the  first  day  of  the  then  next  term  thereof,  to  answer  to 

a  certain  indictment  therein  pending  against  him  for  ,  and  should  not 

depart  our  said  court  without  leave,  and  should  abide  the  order  of  tlie  same 

'Starr  &  Curtis  847;   Rev,    Stat.  Bradw.    380;    Reese  v.    People,    11 

(1893)  525;  Rev.  Stat.  (1895)  568;  see  Bradw.  346. 

Lane  v.  People,  76  111.  300;  Welbom  ^  Gallagher  v.  People,  88  111.  335; 

v.  People,  76  111.  516;  McElwee  v.  Peo-  People  v.  McFarland,  9  Bradw.  275. 

pZe,. 77  111.  493;  Adamsv.  People,  12  '^  Gallagher  v.  People,  88  IlL  335. 


534  SCIKE    FACIAS. 

in  the  premises,  then  the  said  recognizance  was  to  be  void,  and  otherwise  to 
remain  in  full  force,  as  by  the  record  of  the  said  recognizance,  remaining 

in  our  said  court,  more  fuU}'^  appears.     And  whereas  afterward,  in  the 

term  of  our  said  court,  in  the  sa?«e  year  [being  the  term  next  after  the  mak- 
ing of  the  said  recognizance  as  aforesaid],  such  proceedings  were  thereupon 
had  in  our  said  court,  in  that  behalf,  that  the  said  C.  D.  was  three  times 
solemnly  called  in  open  court,  yet  he  came  not,  but  made  default;  and  the 
said  J.  K.  and  L.  M.  were  each  then  and  there  likewise  three  times  solemnly 
called,  and  required  to  bi-ing  into  court  the  body  of  the  said  C.  D.,  yet  they, 
the  said  J.  K.  and  L.  M.  also  made  default,  and  failed  to  bring  into  court 
the  body  of  the  said  C.  D. ;  and  thereupon  it  was  then  and  there  considered 
and  adjvidged  by  our  said  court  that  the  said  recognizance  should  be  tak^en 
for  and  declared  forfeited,  and  that  a  writ  of  scire  facias  should  issue  in 
that  behalf  against  the  said  C.  D.,  J.  K.  and  L.  M.,  as  by  the  record  and 
proceedings  thereof,  remaining  in  our  said  court,  more  fully  appears.  We 
therefore  command  j'ou,  that  you  make  known  to  the  said  C.  D. ,  J.  K.  and 

L.  M.  that  they  be  before  our  said court,  at  the  court  house  in ,  in 

the  said  county  of ,  on  the Monday  of next,  to  show  cause,  if 

any  they  have,  why  execution  should  not  be  awarded  against  them  upon 
the  said  recognizance,  so  declared  forfeited  as  aforesaid,  for  the  sum  of 
money  therein  mentioned.     And  have  you  there  then  this  writ. 

Witness,  R.  S. ,  clerk  of  our  said  court,  and  the  seal  thereof,  at afore- 
said, this day  of ,  in  the  year  18 — . 

[L.  s.]  R.  S. 

See  the  cases  of  Vancil  v.  The  Peojyle^  16  111.  120,  scire  facias 
on  a  recognizance  taken  by  the  sheriff;  Van  Blaricum  v.  The 
People^  22  III.  86,  scire  facias  on  a  recognizance  taken  by  a 
sheriff  on  the  granting  of  a  supersedeas;  and  Gingrich  v.  The 
People^  34  111.  448,  scire  facias  on  recognizance  taken  by  a  jus- 
tice of  the  peace. 

Two  returns  of  nihil^  in  scire  facias  on  a  recognizance,  are 
equivalent  to  actual  service.' 

Before  the  passage  of  the  statute  of  Illinois  (act  of  1869) 
above  quoted,  a  judgment  could  not  properly  be  rendered 
against  both  the  principal  and  surety,  where  the  former  had 
not  been  served,  unless  there  had  been  two  returns  of  nihil^ 
or  his  appearance  had  been  entered.^ 

It  is  indispensable  to  a  legal  default  and  declaration  of  for- 

'  Sans    V.    People,    3    Gilm.    327;  *  Ujtle  v.  People,  47  111.  422;  Pettij 

Besimer  v.  Peo2)le.  15  111.  440;  Choat      v.  People,  118  111.  148. 
V.  People,  19  111.  63;   Chickering  v. 
Failes,  26  111.  507. 


SCIRE    FACIAS.  535 

feiture  of  a  recognizance,  that  the  principal  should  have  been 
regularly  called,  and  upon  such  call  failed  to  appear.' 

A.  wvii  oi  scire  fiicias  upon  a  recognizance  should  clearly 
show  before  what  court  the  recognizance  was  entered  into, 
and  for  what  offense  the  principal  in  the  recognizance  was  in- 
dicted; also,  that  a  judgment  of  forfeiture  was  entered-  prior 
to  the  commencement  of  the  proceeding  for  judgment/  It 
must  be  sufficient  on  its  face  to  entitle  the  People  to  recover 
the  amount  of  the  recognizance,  or  it  will  be  obnoxious  to  a 
demurrer,*  An  indictment  need  not  be  set  out  in  such  writ,-^ 
and  it  is  not  necessary  to  aver  or  prove  that  one  was  ever  found/ 

The  recognizance  of  record  and  judgment  of  forfeiture  are 
competent  and  sufficient  evidence,  under  appropriate  aver- 
ments in  the  scire  facias,  to  authorize  judgment  of  execution 
according  to  the  form,  force  and  effect  of  the  recognizance.' 

The  recognizance  may  be  stated  according  to  its  legal  effect, 
or  it  may  be  set  out  verlKitim^  leaving  the  court  to  de- 
cide on  its  effect.*  Where  the  recognizance  was  entered 
into  before  a  justice  of  the  peace,  or  other  officer,  and  not  in 
open  court,  the  writ  should  show,  by  proper  recitals,  that  the 
recognizance  legally  became  a  matter  of  record.' 

A  scire  facias  on  a  recognizance  to  appear  from  day  to  day, 
until  discharged,  to  answer,  etc.,  is  good,  although  it  does  not 
show  that  any  indictment   was   found  against  the  princijial.'" 

The  writ  should  issue  against  the  principal  and  the  sureties, 
and  not  against  the  sureties  alone." 

Where  a  scire  facias  recites  that  the  persons  before  whom 
the  recognizance  was  entered  into  were  justices  of  the  peace 
for  the  county  in  which  it  was  taken,  the  court  will  presume, 

'  Broivn  v.  People,  24  111.  App.  72.  '  Ibid. 

2  Thomas  v.   People,  13  111.   696:  ^  Lawrence  v.  People,  17  111.  172. 

see    Bacon  v.   People,    14    111.  312;  » Shadley    v.  People,   17   III.   252; 

Kennedy  v.  People,  15  111.  418:  Con-  see  McFarland  v.  People,  13  111.  9. 

ner  V.  Peop?e,  20  111.  381;  Eubank  w.  ^^  Wheeler  v.   Peojjle,  39  111.  430; 

People,  50  III  Ad6;  Petty  v.   People,  People     v.     O'Brien,    41     III.    303; 

118  111.  148.  O'Brien    v.    Peojjle,   41  111.  456;  but 

"  Brown  v.  People,  24  111.  App.  72,  see  Piercy  v.  People,  10  Bradw.  219. 

*  Wood  V.  People,  16  111.  171.  »  Alley    v.  Peojile,    1   Gilm.    109; 

^  Chumasero -v.  Peojjle,  18  III.  405.  Banta    v.   People,   53    111.   434;  see 

«  Kepley  v.  People,  123  111.  367.  Chuniasero  v.  People,  18  111.  405, 


536  SCIKE   FACIAS. 

on  demurrer,  that  the  charge  was  regularly  preferred  and 
examined,  and  the  proper  adjudication  made  by  the  justices, 
before  the  recognizance  was  acknowledged.' 

Defenses  to  scire  facias. — A  scire  facias  is  considered,  in 
Illinois,  both  *as  a  process  and  a  declaration;  and  if  defective, 
the  defendant  may  demur,'  or  move  to  quash  the  writ.^ 

The  defendant  may  plead  nul  tiel  record.yfhich  puts  in  issue 
the  existence  of  the  record  upon  which  the  proceeding  is  based; 
and  under  this  plea  he  may  take  advantage  of  any  variance 
between  the  record  produced  in  evidence  and  the  one  recited 
in  the  writ.*  See  the  form  of  this  plea  in  debt,  antSy  No.  494, 
and  the  remarks  thereunder. 

In  a  plea  in  bar  to  a  scire  facias  (except  on  a  mortgage),  in- 
stead of  actio7iem  nan,  etc.,  the  defendant  says  that  the  plaint- 
itf  ought  not  to  have  execution  against  him,  etc.;  and  the  plea 
concludes  with  a  prayer  of  judgment  if  the  plaintiff  ought  to 
have  execution  against  him,  etc. 

To  a  scire  facias  on  a  judgment,  nothing  can  be  pleaded  in 
bar  which  might  have  been  pleaded  to  the  original  action,'' 
nor  anything  contrar\^  to  the  title  on  which  the  recovery  was 
obtained,  or  which  shows  only  that  the  judgment  was  errone- 
ous or  voidable;  *  nor  can  the  defendant  plead  the  pendency 
of  a  writ  of  error  on  the  same  judgment.' 

To  a  scire  faci-os  on  a  mortgage,  the  defendant  can  not  plead 
usury,"  or  a  total  or  partial  failure  of  consideration  or  a  want 
of  consideration,*  or  fraud,  as  it  is  said,'"  or  a  set-off." 

1  McFarland    v.  People,  13  111.  9;  R.  R.  Co.  v.  Marshall,  85  Penn.  St. 

see  Pate  v.  People,  15  111.  223.  187. 

^Marshall  v.  Maury,  1  Scam.  231;  ^  Com.  Dig.  Plead.  3  L.  10. 

McFaddenv.  Fortier,  20  1\\.  50Q.  '' 4  Mod.  247;  see    contra.  Show. 

3  McFadden  v.  For  tier,  20111.  509;  86;    Skin.  590. 
see  Reddick  v.  Cloud,   2  GUm.  670;  »  Camp  v.   Sviall,  44  111.  37;  Car- 
Ferris  V.  Croiv,  5  Gilm.  96.  penter  v.  Mooers,  26  111.  162. 

*  Compton  V.  People,  86  111.  176;  ^  Hallx.  B7jrne,lScam.U0;Wood- 

Farris  v.  People,  58  111.  26;  Slaten  v.  bury  v.  Manlove,  14  111.  213;  White 

People,  21  111.  28;  Mooney  v.  People,  v.  Watkins,  23  111.  426;  Fitzgerald  v. 

81  111.  134;  Allen  y.  People,  29  lU.  Forfestal,  48  111.  228. 

App.  555.  ">  White  v.   Watkins,  23  111.  426; 

^  Cooke  y.  Jones,  Cowp.  728;  Wil-  see  Dorr  v.  Munsell,  13  Johns.  430; 

cox  V.  Mills,  4  Masa  218;  1  Chit.  PI.  Franchot  v.  Leach.  5  Cow.  506. 

427;  McFarland  v.  h^win,  8  Jolms.  "•  Woodbury  \.  Manlove,  14  111.  313. 
77;  Oreen  v.  Ovington,  16  Johns.  55; 


SCIRE    FACIAS.  537 

So  a  plea  alleging  the  assignment  of  the  note  and  mortgage 
to  a  third  person,  before  the  issuing-  of  the  writ,  is  not  a  good 
plea  in  bar.'  "The  mortgage,  being  recorded,  is  treated  as  a 
record,  importing  absolute  verity,  against  which  nothing  in  the 
shape  of  a  defense  can  be  averred  except  that  it  was  void  ah 
initio,  and  never  a  valid  lien,  or  that  it  has  been  discharged  or 
released."  ^     A  scire  facias  on  a  mortgage  is  not  an  action.^ 

The  plea  of  non  est  factum  is  not  a  good   plea   to  a  scire 
facias,  which  is  always  founded  on  a  record.* 

It  may  be  shown,  in  defense  to  a  scire  facias  on  a  recoo-- 
nizance,  that  the  performance  of  the  condition  was  rendered 
impossible  by  the  act  of  God,  or  of  the  law,  or  of  the  cog- 
nizee.'  But  where  the  sureties  in  a  recognizance  pleaded  (1) 
that  the  principal,  after  his  discharge  on  bail,  and  before 
the  term  of  the  court  at  which  he  was  bound  to  appear, 
without  their  knowledge  or  consent,  enlisted  as  a  private  in 
the  military  service  of  the  United  States,  and  Avas  ordered 
into  another  state,  where  he  still  remained,  under  military 
authority,  not  at  liberty  to  suirender  himself,  nor  could  his 
sureties  arrest  and  surrender  him,  in  satisfaction  of  the  re- 
cognizance, and  that  they  could  not  procure  his  custody  bv 
habeas  corpiis  or  otherwise;  and  (2)  that  at  the  time  of  the 
taking  of  the  forfeiture,  and  for  a  long  time  before,  the  prin- 
cipal was,  and  at  all  times  since  has  been,  in  another  state, 
and  was  sick  and  disabled,  insomuch  that  he  could  not  be  re- 
moved, or  brought  and  surrendered  to  the  court  or  any  officer 
by  his  sureties,  without  great  danger  of  the  loss  of  his  life, 
the  pleas  were  regarded  as  not  presenting  any  good  defense. 
It  was  held,  however,  that  the  same  matters,  substantiallv, 
set  forth  in  an  affidavit,  showed  good  grounds  for  a  continu- 
ance." 

In  another  case,  the  surety  pleaded  that  the  principal  was 
in  the  service  of  the  United  States  at  the  time  he  was  arrested; 

J^OMWandv.  A'tpp.  55  III.  376.  *  Johnson  v.   People,   31  III.  469; 

^  Carpenter  V.  Mooers,  26  111.  162;  Camp  v.  Small,  44  111.  37. 

Wliitey.  Watkins,  23  111.  426;  Camp  ^  Co.  Lit.  206,  a;  Bac.  Abr.  Cond. 

V.  Small,  44  111.  37.  2;  Mather  v.  Peojjle,  12  111.  9;  Piercy 

^Carpenter  v.  Mooers,  26  111.  162;  v.  People,  10  Brad.  219;  Hangsleben 

Woodbury  v.  Manlove,  14  111.  213.  v.  Peojtle,  89  111.  164. 

«  Gingrich  v.  People,  34  III.  448. 


538  SCIRE    FACIAS. 

that  after  giving  bail  he  was  held  to  such  service,  and  taken 
by  the  military  authorities  to  another  state,  and  was  prevented 
by  reason  thereof  from  appearing  according  to  the  terms  of 
the  recognizance;  and  that  by  reason  of  his  being  so  held  by 
the  military  authorities  in  another  state,  it  was  out  of  the 
power  of  the  surety  to  surrender  him,  and  out  of  his  power  to 
appear,  etc.  It  was  held,  on  demurrer,  that  the  plea  was  bad, 
and  that  the  principle  of  vis  major  did  not  apply  in  such  a 
case.' 

But  in  Illinois  the  death  of  the  principal  in  any  recognizance 
after  forfeiture  thereof,  but  before  judgment  rendered  upon 
the  scire  facias  issued  thereon,  may  be  pleaded  by  the  sureties 
in  discharge  of  such  recognizance.^  A  plea  that  the  sureties  in 
the  recognizance  surrendered  their  principal  after  the  forfeit- 
ure thereof,  and  before  the  issuing  of  the  scire  facias  thereon, 
is  bad  on  demurrer.^ 

The  plea  of  7ml  tiel  recognizance  is  not  a  proper  plea  in 
scire  facias  upon  a  recognizance.  The  action  being  upon  a 
record,  is  fully  met  by  the  plea  of  nul  tiel  record* 

^  Hnggins  v.  People,  39  111.241;  Starr  &  Curtis  841;  People  v. 
Gingrich  v.  People,  34  111.  448.  Meacliam,  74  111.  292. 

«  Mather    v.   Peojile,  12  111.   9;  1  ^  Hangsleben  v.  People,  89  111.  164. 

*  Mooney  v.  People,  81  111.  134. 


CHAPTER  XYI. 

MANDAMUS. 

Nature  of  writ. — A  writ  of  mandamus  is  a  command  issu- 
ing in  the  name  uf  the  sovereign  authority,  from  a  superior 
court  having  jurisdiction,  and  is  directed  to  some  person,  cor- 
poration or  inferior  court,  within  the  jurisdiction  of  such 
superior  court,  requiring  him  or  them  to  do  some  particular 
thing  therein  specified  which  pertains  to  his  or  their  office 
and  duty,  and  which  the  superior  court  has  previously  deter- 
mined, or  at  least  supposed  to  be  consonant  to  right  and 
justice.' 

Award  of,  discretionary  with  court. — It  is  not  a  writ  of 
right  but  is  only  granted  in  the  discretion  of  the  court  to 
which  the  application  for  it  is  made;  and  this  discretion  is  not 
exercised  in  favor  of  the  applicant  unless  some  just  and  use- 
ful purpose  may  be  answered  by  the  writ."* 

Purpose  of  writ. — This  .writ  was  introduced  to  prevent 
disorders  from  a  failure  of  justice;  and  therefore  it  ought  to 
be  used  upon  all  occasions  where  the  law  has  established  no 
specific  remedy,  and  where  in  good  justice  and  good  govern- 
ment there  ought  to  be  one.* 

Prior  to  the  revision  of  the  statute  it  was  held  that  it  would 

i2Bouv.  Law  Diet.  100;  Carpen-  178;    Peojjle  v.  Solomon,  51   III.   39; 

ter  V.  Co.  Com.  21  Pick.  258.  People  v.  Curyea,  16  111.  547;  Stri- 

^  Peoi^le  V.  Davis,  93  111.133;  Peo-  gert  v.  Hamilton  Co.,  130  111.  538; 

jyle  V.    Hatch,  33  III.   9;  t'eople  v.  People  v.   Tnuitees,  42  111.  App.  60; 

Lieh,  85  111.   484;   People  v.  R.  R.  North  v.  Trustees,  137  111.  296;  Peo- 

Co.,  55  111.  95;  People  v.  I.  C.  R.  R.  pie  v.  McConnell,  146  111.  532. 

Co.,  62  111.  510;    R.   R.   Co.  v.   Co.  ^Rex  v.    Barker,    3  Burr.    1267; 

Clerk,  74  111.  27;  People  v.  Ketchum,  Mention  v.    County,  10   Pick.    235; 

72  111.  212;  Com.  Yorktown  v.  Peo-  Johnson  v.    Randall,   7  Mass.   340; 

2>le,  66  III.   339;  Cristman  v.   Peck,  People    v.    Thorp,    12    Wend.  183; 

90  111.   150;  Watch  v.  Pearson,   140  Kendall  v.  U.  S.,  12  Pet.  524;  Rex  v. 

III.  425;  People  v.  Williams,  55  111.  Directors,  12  East  429. 

(539) 


540  MANDAMUS.  ' 

be  granted  only  where  there  was  no  other  remedy,'  or  where 
it  was  doubtful  whether  there  was  another  effectual  remedy/ 
or  where  the  court  did  not  see  its  way  clearly  to  one/  But  it 
is  provided  by  section  9  of  the  present  statute  on  mandamus, 
that  the  proceeding  shall  not  be  dismissed,  nor  the  writ  denied 
because  the  petitioner  may  have  another  specific  and  sufficient 
remedy.* 

To  entitle  a  party  to  the  writ,  he  must  show  a  clear  legal 
right  to  have  the  act  sought  by  it  done,  and  in  the  manner 
and  by  the  defendant  sought  to  be  coerced;  that  it  is  the  de- 
fendant's imperative  duty  to  perform  the  act;  that  such  act  is 
within  the  defendant's  power  to  perform,  and  the  case  must  be 
one  in  which  the  remedy  would  be  effectual.* 

If  the  amount  or  the  right  involved  presents  an  issue  of 
fact,  it  must  be  referred  to  the  arbitrament  of  a  jury,  or  to  the 
ordinary  process  of  the  courts." 

It  will  never  be  awarded  in  a  doubtful  case,  or  where  it  will 
prove  barren  or  fruitless,  or  can  not  have  a  beneficial  effect,' 
or  can  be  of  no  substantial  or  practical  benefit  to  the  petitioner.* 

1  School  Board  v.  People,  20  111.  96  III.  503;  Com.  v.  People,  99  111. 
535;  Peo20le  v.  Hatch,  33  111.  9;  Tap.  587;  People  v.  Johnson,  100  111.  537; 
on  Mandamus  18;  People  v.  Cover,  Johnson  v.  People,  8  Bradw.  395; 
50  111.  100;  People  v.  Supervisors,  50  Sivigert  v.  Hamilton  Co.,  130  111. 
lU.  213;  People  v,  Warlield,  20  111.  538;  Watch  Co.  v.  Pearson,  140  111. 
159;  People  X.  Solomon,  46  111.  415;  425;  Dement  v.  Rokker,  126  111.  174; 
City  of  Ottawa  V.  People,  ^%m.2Zd;  R.  R.  Co.  v.  Suffem,  129  111.  274;- 
People  V.  Common  Council,  53  111.  People  v.  Getzendaner,  137  111.  234; 
424;  State  Board  v.  People,  20  North  v.  Trustees,  137  111.  296;  Peo- 
Bradw.  457.  pie  v.  McConnell,  146  111.  532;   Peo- 

2  City  of  Ottaica  v.  People,  48  111.  pie  v.  Ruby,  59  111.  App.  653;  Buck- 
233;  Ry.  Co.  v.  People,  56  111.  365;  ley  v.  Eisendrath,  58  111.  App.  364; 
People  V.  Solomon,  51  111.  39.  Railroad  Co.  v.  People,  132  111.  559; 

3  Tap.  on  Mandamus  19;  People  v.  People  v.  Com.,  118  111.  239. 
Cummings,  25  111.  325.  « People  v.    Getzendaner,   137  111. 

4  Starr  &  Curtis'  An.    Stat.    1588;  234. 

Rev.  Stat.  (1893)  958;  Rev.  Stat.  (1895)  ■>  Swigert  v.  Hamilton  Co.,  130 111. 

1020;  Rtj.  Co.  V.  People,  121  111.  483.  538;  Watch  Co.  v.  Pearson,  140  111. 

^People  V.  R.  R.  Co.,    55  111.    95;  425;  Dement  v.  Rooker,  126  111.  174; 

People  V.  Lieb,  So  m.  4Si',  People  v.  Brokaw    v.    Comm.,   130    111.   482; 

Forquer,    1   Breese    (Beecher)   104;  North  v.  Trustees,  137  111.  296;  Peo- 

People  V.  Glann,  70  111.  232;    People  pie  v.  Trustees,  42  111.  App.  60. 

V.  Crotty,  93  111.   180;    Lavalle    v.  «  Gormley  v.  Day,  114  111.  185;  Aff 

Soucy,  96  111.  467;  People  v.  Dulaney,  v.  Hop>kins,  57  111.  App.  529. 


MANDAMUS.  541 

The  absence  or  want  of  any  other  adequate  and  specific 
remedy  is  not,  of  itself,  sufficient  to  lay  the  foundation  for 
interference  by  mandamus.^ 

A  mandmmis  is  a  proper  remedy  for  the  people,  where  a 
public  officer  refuses  to  perform  a  duty  required  of  him  by 
law.^ 

In  all  matters  requiring  the  exercise  of  official  judgment, 
resting  in  the  sound  discretion  of  the  person  to  whom  a  dut}^ 
is  confided  by  law,  mo/ndamus  will  not  lie,  either  to  control 
the  exercise  of  that  discretion,  or  to  determine  the  decision 
which  shall  be  finally  given/ 

While  it  is  true  that  mandamus  will  not  lie  to  compel  the 
performance  of  acts  or  duties  which  necessarily  call  for  the 
exercise  of  judgment  on  the  part  of  the  officer  or  body  at  whose 
hands  their  performance  is  required,  yet  if  a  discretionary 
power  is  exercised  with  manifest  injustice,  or  such  discretion 
is  grossly  abused,  or  exercised  from  selfish  and  unworthy  mo- 
tives, the  courts  are  not  precluded  from  commanding  its  due 
and  proper  exercise.  Such  abuse  of  discretion  will  be  con- 
trolled by  mandamus.*' 

Where  the  object  of  the  writ  is  the  enforcement  of  a  public 
right,  the  people  are  regarded  as  the  real  party,  and  the  relator 
need  not  show  that  he  has  any  legal  interest  in  the  result.  It 
is  enough  that  he  is  interested,  as  a  citizen,  in  having  the  law 
executed  and  the  right  in  question  enforced.^  A  mandamus 
can  only  be  awarded  to  compel  a  person  to  perform  an  act 
when  it  is  his  duty  to  do  so  without  it.° 

1  People  V.  Garnett,  130  HI.  340.  111.  218;  Sayer  v.   Gametf,  130  III. 

^  People  V.  Johnson,  100  111.  537;  340;  Peojjle  v.  Trustees,  43  111.  App. 

Iroquois  Co.  V.  Bates,  61  111.  490;  60. 

Peojjle  V.  Ry.  Co.,  118  111.  113;  Hyde  *  State  Board  v.  People,  123  111. 

Park  V.   Thatclier,  13  Bradw.  613;  227;  Brokaic  v.  Com.,  130  111.  482; 

People  V.  County,  125  111.  334.  People  v.  Com.,  158  111.  197;  Peotone 

3  Ottatca    V.    People,   48   111.    233;  v.  Adams,  61  111.  App.  435. 

School  Board  v.  People,  20  111.  526;  ^People  v.   Board  of  Education, 

People  V.  Hilliard,  29   111.  413;  St.  127  111.  613. 

C/aiV  Co.  V.  PeopZe,  85  111.  396;  Peo-  ^People  v.   McKee,  5  Gilm.    243; 

pie  V.  3IcKee,  5  Gilm.  242;  Peo2jle  v.  People  v.  Hatch,  33  111.  9;  People  v. 

Com.,  118  111.  239;  People  v.   Com.,  Bd.  of  Sup.,  45  111.   162;   People  v. 

158  111.   197:  North  v.  Trustees,  137  Salomon,  46I\\.  S3d;  Peajile  v.  Miuer, 

111.  296;   Hubbard  v.  Anthony,  129  46  111.  384;  Ottawa  v.  People,  48  lU. 


542  MANDAMUS. 

If  it  is  doubtful  whether  the  person  has  by  law  a  right  to  do 
such  act  or  not,  the  writ  will  be  denied/ 

When  it  will  lie. — Where  one  has  been  elected  to  a  public 
office,  a  mandamus  will  be  awarded  to  compel  his  predecessor 
to  deliver  possession  of  the  office,  but  the  right  to  the  per- 
manent enjoyment  of  the  office  is  not  determined  in  such  pro- 
ceeding.'^ 

Where  a  person  is  in  possession  of  an  office  and  exercising 
the  duties  thereof,  with  a  color  of  right,  mandamus  will  not 
be  awarded.     The  proper    remedy  is  quo  warranto.^ 

Mandamus  will  lie  to  compel  an  officer  to  give  notice  of  an 
election,*  or  to  announce  the  result  of  an  election; '  to  compel 
a  railway  company  to  deliver  grain  to  an  elevator; "  but  not 
off  its  own  line; '  to  compel  a  board  of  supervisors  to  submit  a 
proposition  for  subscription  to  a  railway  company  to  a  vote  of 
the  people;  *  to  compel  a  city  to  maintain,  open  and  close 
bridge;'  to  compel  a  city  to  pay  a  judgment  against  it; '"  to 
compel  a  city  to  open  street; "  or  to  repair  streets;  '*  to  com- 
pel the  issue  of  a  dram-shop  license,  wrongfully  refused  under 
a  general  ordinance; '^  to  compel  the  issue  of  bonds; '*  and  to 

233;  County  v.   People,  85  111.396;  '^People  v.    Trustees,  51  111.    149; 

School  Trustees  v.  People,  71  111.  559;  People  v.  Thompson,  155  111.  451. 

People  V.  Glann,  70  111.  333;  Com.  v.  °  People  v.  Salomon,  46  111.  415. 

People,  66  111.  339;  Klokke  v.  Stan-  ^  Ry.  Co.  v.  People,  56  111.  365. 

ley,  109  111.  193;  People  v.  Ruby,  59  ''People  v.  R.  R.  Co.,  55   111.   95; 

111.  App.  653.  see  Hoyt  v.  R.  R.  Co.,  93  111.  601. 

^People  V.    Forquer,   Breese  104;  '^ People  v.  Logan  Co.,  45  111.  163. 

People  V.  Hatch,  83  111.  9;  People  v.  »  Ottawa  v.  People,  48  111.  333. 

Head,   35  111.    335;  Peoples.   R.  R.  ^^ Olney  v.  Harvey,    50  111.    453; 

Co.,  55  111.  95;  People  v.    Cline,  63  Chicago  v.  Peojjle,  48  111.  416;    C7ii- 

III.  394;   People  v.  Supervisors,   88  cago  v.  Sansum,   87  111.  183;   People 

111.    303;  Sujjervisors  v.    People,  16  v.  Sup.  Clark  Co.,  50  111.  313;  Chi- 

Bradw.  305;   People  v.   Comm.,  118  cagro  v.  O'iJara,  60  111.  413;    Cooky. 

111.  839;   Sup.  Stark   Co.  v.   People,  Comm.,  61  111.  115;  Cairo  v.  Camp- 

118  111.  459.  bell,    116   111.   305;  R.  R.  Co.  v.  St. 

■2  Peojile  V.  Head,  25  111.  835;  Dele-  Anne,  101  111.  151;  Cairo  v.  Everett, 

hanty  v.    Warner,   75  111.   185;  see  107  111.  75;  Bd.  of   Auditors  v.  Peo- 

People  V.  Kilduff,  15  111.  493.  pie,  38  111.  App.  339. 

^People  V.  Trustees,   43  111.   App.  "  Webster  v.  Chicago,  83  111.  458. 

60;    People  v.  Forquer,  Breese  104;  '^  People  v.  Mayor,  63  111.  207. 

People  V.  Matteson,  17  111.  167;  Peo-  ^^ People  v,  F.  W.  Co.,  60111.  App. 

pie    V.  Hilliard,    29    111.    413;    see  395. 

chapter  on  Quo  Warranto.  ^* People  v.  Logan  Co.,  63  111.  374; 


MANDAMUS.  543 

compel  the  stopping  of  railway  trains  at  county  seats; '  or  to 
compel  a  corporation  to  keep  its  records  at  its  principal  office 
or  place  of  business."  Where  city  authorities,  without  legal 
excuse,  refuse  a  permit  to  a  railroad  company  to  lay  tracks 
across  a  street,  mandamus,  and  not  injunction,  is  the  remedy.^ 

A  clerk  of  a  court  may  be  compelled  by  mandamus  to  ad- 
minister an  oath  of  office,  and  file  an  official  bond,  and  deliver 
a  commission  to  an  officer,  when  it  is  by  law  the  duty  of  such 
clerk  so  to  do."  And  it  is  the  proper  proceeding  against  an 
ex-mayor,  to  compel  him  to  deliver  to  the  mayor-elect  the  seal, 
books,  papers,  etc.,  of  the  corporation.^ 

A  jnandamus  will  lie  to  compel  a  circuit  judge  to  sign  a  bill 
of  exceptions,  when  a  correct  one  is  presented  in  apt  time,® 
and  where  his  decision  is  not  final; ''  to  compel  a  judge  to  trv 
a  person  indicted  for  murder;*  to  compel  a  clerk  to  issue  an 
execution;'  or  an  officer  to  execute  a  deed  which  it  is  his 
duty  to  execute; '"  or  overseers  of  the  poor  to  perform  their 
duties  in  respect  to  contracts  for  supporting  or  rendering  med- 
ical services  to  paupers;  "  or  a  county  judge  to  make  an  order 
appointing  appraisers  to  assess  damages,  when  the  law  requires 
him  to  do  so;  '^  or  commissioners  of  highways  to  perform  their 

People  V.  Sup.,  67  111.  62;  R.  R.  Co.  v.  Ames,  74  111.  253;  Peojile  v.  Pend- 
V.  St.  Anne,  101  111.  151;  Peojyle  v.  ergast,  117  111.  588;  Peoj^le  v.  Will- 
Bishop,  111  111.  124.  iams,  91  III.  87;  People  v.   Bhuks, 

'/.    a   R.  R.  Co.    V.   People,   143  10  Bradw.  17;  People  v.  Anthony, 

III.  434.  129  111.  218;  Haices  v.    People,  129 

« Tow   Co.  V.  Thomas,  60  111.  App.  111.    123:  People    v.    Haices,  25  111. 

234.  App.  326;  People  v.  Donnelly,  59  111. 

3  Ry.  Co.  V.  Chicago,  159  111.  369.  App.  413. 

••  Peojile  V.  Fletcher,  2  Scam.  482;  '  People  v.  Smith,  51  111.  177. 

Ross  V.  People,  78  111.  375;  Peojjle  v.  ^People  v.  Zane,  105  111.  662. 

Dulaney,  96  111.  503.  » People  v.    Cloud,  2  Scam.    362; 

^People  V.   Kilduff,    15    111.   492;  Allenv.  Conlon,2Brad\\.  im. 

Taylor  v.  Henry,  2  Pick.  897;  Tap.  ^'^  Maxcy  v.  Clahaugh,  1  Gilm.  26; 

on  Mand.  94.  Klokke  v.  Stanley,  109  111.  192;  People 

^People  V.  Pearson,  3  Scam.  270;  v.  Ryan,  16  Bradw.  347. 

People  V.  Jamison,  40  111.  93;  People  "  Rouse  v.  Peoria  Co.,  2  Gilm.  99. 

V.  Pearson,  2  Scam.  189;  Weather-  '-See  Graham  v.  People,  111  111. 

ford  V.  Wilson,  2  Scam,  253;  Hulett  253;  Peojjle  v.  Zane,  105  111.  662. 


544  MANDAMUS. 

duties  in  regard  to  the  making  of  roads,  etc.;'  or  to  compel 
school  trustees  to  lay  out  a  new  school  district.'' 

Will  not  lie. — It  is  not  a  proper  proceeding  to  try  the  ques- 
tion of  the  location  of  a  public  highway,  as  between  the  pub- 
lic and  the  land  holders  over  whose  land  such  highway  is  to 
be  laid  out.'  It  will  not  be  granted  to  compel  the  governor 
to  return  a  legislative  bill  to  the  secretary  of  state;  *  nor  to 
compel  the  state  treasurer  to  pay  a  warrant  in  gold  coin  when 
there  is  no  gold  in  the  treasury  belonging  to  the  particular 
fund  on  which  the  warrant  is  drawn.* 

It  does  not  lie  to  compel  reinstatement  of  member  of  board 
of  trade;  *  nor  to  compel  the  performance  of  an  enjoined  act; ' 
nor  to  compel  the  performance  of  an  executory  contract;  *  nor 
to  compel  the  granting  of  a  change  of  venue.^  It  does  not  lie 
at  the  relation  of  a  mere  taxpayer  to  compel  supervisors  to 
comply  with  contract  with  third  persons; '"  nor  to  compel 
county  officers  to  tevy  tax  to  pay  county  orders; "  nor  to  com- 
pel highway  commissioners  to  open  road  before  right  of  way 
has  been  obtained; "  nor  to  compel  judge  to  refer  cause  to  a 
particular  master.'^ 

Jurisdiction. — The  supreme  court,'*  and  the  respective  ap- 
pellate,'^ and  the  circuit  courts  of  Illinois,'®  have  power  to  issue 

•  See  People  v.  Comm.,  52  111.  498;  ^People   v.  Beveridge,  37  111.  307; 
Cornm.  v.  People,  31  111.  97;  Hall  v.  People  v.  SecVy  of  State,  58  111.  90; 
People,  57  III.  307;  People  v.  Comin.,  Comm.  v.  Snyder,  15  Bradw.  645. 
88   111.    141;    Sheaf  t    v.    People,   87  ^  People  v .  Board  of  Trade,  80  III 
111.    189;   Peoj^e  v.  Dent,    110    111.  134. 

180;  Supervisors  v.  People,  110  111.  ■"  Peoplex.  HaTce,  81  111.  540. 

^W;  Klein  v.   People,   31    111.  App.  ^  People  x .  Dulaney ,  ^Q  IW.  mZ. 

303;  see  People  v.  Com.,  32  111.  App.  »  People  v.  McRoherts,  100  111.  458. 

164;  Com.  v.  Jackson,  Ql  111.  App.  ^^  People  v.  Vermilion  Co.,  47  111. 

381;  Com.  v.  Watts,  61  111.  App.  634.  256. 

-School   Directors   v.  School  Di-  "  People  v.  Clark  Co.,  50111.  213. 

rectors,  135111.  464:  Hainesv.  People,  '^  Com.  v.  People,  4  Brad.  391. 

19  Bradw.    354;  People  v.  Comm.,  "  People  v.  Williams,  55  111.  178. 

158  111.  197.  "  Sec.  2,  Art.  VI.  Const. 

^People    V.    Ciiryea,   16  111.    547;  »  1  Starr  &  Curtis  703;  Rev.  Stat, 

see    Comm.  v.    People,   31    111.    97;  (1893)  433;  Rev.  Stat.  (1895)  475. 
People  V.  Supervisors,  111  111.  527.  '«  1  Starr  &  Curtis,  709;  Rev.  Stat. 

*  People   V.     Yates,    ^"40    111.    126;  (1893)436;  Rev.  Stat.  (1895)  478. 
People  V.  Bissell,  19  III.  239;  People 

V.  Cullom,  100  III.  472. 


MANDAMUS.  545 

writs  of  mandamus;  but  the  circuit  courts  can  not  issue  writs 
to  operate  beyond  the  limits  of  their  respective  circuits.' 

The  relator. — The  question  as  to  who  shall  be  the  relator 
(or  petitioner)  in  an  application  for  a  mandamus  depends  upon 
the  object  to  be  attained  by  the  writ.  When  the  remedy  is 
resorted  to  for  the  purpose  of  enforcing  a  private  right  the 
relator  must  be  the  person  interested  in  having  the  rio-ht  en- 
forced. The  relator  is  considered  the  real  party,  and  his  right 
to  the  relief  must  clearly  appear.  But  where  the  object  is  the 
enforcement  of  a  public  right,  the  people  is  regarded  as  the 
real  party,  and  the  relator  need  not  show  he  has  any  legal  in- 
terest in  the  result.  It  is  enough  that  he  is  interested  as  a  cit- 
izen, in  having  the  laws  executed,  and  the  duty  in  question 
enforced.'' 

A  petition  for  mandamtis  by  a  private  person  must  clearly 
show  that  the  petitioner  has  a  personal  interest  in  the  thin^ 
he  seeks  to  compel  to  be  done,  and  that  he  has  been  injured 
in  his  personal  interests  by  the  refusal  of  the  defendants  to  per- 
form a  duty  imposed  upon  them  by  law.'  A  private  person 
may  apply  for  a  mandamus  to  enforce  a  public  duty  not  due 
to  the  government  as  such,  without  the  intervention  of  the 
government  law  officer.* 

Proceedings — Summons. — Section  1  of  chapter  87  of  the 
revised  statutes,*  entitled  Mandamus,  is  as  follows :  "■  That 
upon  the  filing  of  a  petition  for  a  mandamus,  the  clerk  of  the 
court  shall  issue  a  summons,  in  like  form  as  other  summons  in 
suits  at  law,  commanding  the  defendant  to  appear  at  the 
return  term  thereof,  and  show  cause  why  a  Avrit  of  mandamus 
should  not  be  issued  against  him.  If  the  summons  is  issued 
in  vacation  it  shall  be  returnable  on  the  first  day  of  the  next 
term;  or  in  term  time,  it  may  be  made  returnable  on  any  day 
of  the  term  not  less  than  five  days  after  the  date  of  the  writ." 

»  Welch  V.  People,   38  111.  20;  see  » North  v.  Board  of  Trustees,  137 

Sandbury  v.  Papineau,  81  111.  446.  111.  296. 

2  Pike  Co.  V.  State,  11  111.  202;  Ot-  *  North  v.  Board  of  Trustees,  Ibid. 

tawa  V.  People,  48  111.  233;  Thatcher.  ^  Rev.  Stat.  (1893),  957;  Rev.  Stat. 

V.  Peojile,  98  111.  635;  People  v.  Su-  (1895),  1020;  Starr  &  Curtis  An.  Stat. 

pervisors,  47  111.  256:  People  v.  Trus-  1584. 
tees,  86  III.  613;    Glencoe  v.  People, 
78  111.  382. 

35 


546  MANDAMUS. 

The  tenth  section  of  the  Practice  Act  of  1872  is  as  follows : 
"  It  shall  not  be  necessary  hereafter,  in  any  action  of  manda- 
mus or  quo  warranto^  to  set  out  the  cause  of  action  in  the 
writ,  but  it  shall  be  sufficient  to  summon  the  defendant  in  a 
summons  in  the  usual  form,  commanding  the  defendant  to 
appear  and  answer  the  plaintiff  in  an  action  of  mandamufi  or 
quo  warranto^  as  the  case  may  be,  and  the  issues  shall  be  made 
up  by  answering,  pleading  or  demurring  to  the  petition  as  in 
other  cases." ' 

By  the  section  above  quoted,  the  issuing  of  an  alternative 
writ  of  mandamus  setting  out  the  cause  of  action,  is  in  effect 
dispensed  with;  and  it  is  sufRcient  ''  to  summon  the  defendant 
in  a  summons  in  the  usual  form;"  and  the  issues  are  to  be 
made  up  as  in  other  cases." 

Before  this  statute,  the  petitioner  was  required  to  give 
notice  of  the  application;  and  if  the  petitioner  presented  a 
proper  case,  prima  facie,  an  alternative  writ  of  mandamus 
issued,  commanding  the  defendant  to  do  the  thing  required, 
or  to  show  cause  to  the  court  why  it  should  not  be  done. 
This  writ  then  served  the  same  purpose  as  a  declaration  in  an 
ordinary  cause;  and  the  defendant  might  move  to  quash  it,  or 
demur  to  it,  or  make  a  return  denying  the  allegations  thereof, 
or  setting  up  new  matter  constituting  a  defense  to  the  relator's 
claim;'^  and  if  the  defen'dant  neglected  to  make  any  answer  or 
return  to  the  alternative  writ  a  peremptory  writ  would  issue, 
without  any  rule  against  him  to  return  the  alternative  writ.* 

Demand. — Where  the  duty  sought  to  be  enforced  by  rnanda^ 
mus  is  of  a  merely  private  nature,  affecting  only  the  right  of 
the  relator,  a  demand  is  necessary  to  lay  the  foundation  for 
relief  by  mandamus.  But  if  the  duty,  the  performance  of 
which  is  sought  to  be  enforced,  is  a  public  duty,  resting  upon 
the  respondents  by  virtue  of  their  office,  no  such  demand  and 
refusal  are  necessary/ 

1  Rev.  Stat.  (1893),  1072;  2  Starr  &  9;  People  v.  Kilduff,  15  111.  492; 
Cvistis,  1780;  Rev.  Stat.  (1895),  1156.       Peoiile  v.  Davis,   93  111.   133;  Silver 

2  Com  V.    Gibson,  7    Bradw.  231;      v.  PeopZe,  45  111.  224. 

People  V.  Glann,  70111.  232;  PeopAe  *  People  \.  Pearson,  2  Scam.  187; 

V.  Crabb,  156  111.  155.  People  v.  Pearson,  3  Scam.  283. 

^See    Canal    Trustees  v.   People,  ^People,   v.    Bd.    of  Ed.,    127  111. 

12  111.  248;  People  v.  Hatch,  33  111.  613;    People  v.  ML   Morris,  137  111. 


MANDAMUS.  547 

The  demand  may  be  made  by  the  petitioner,  or  by  some  one 
duly  authorized,  and  personally  upon  those  from  whom  the 
duty,  etc.,  is  required.' 

Requisites  of  petition. — It  is  a  familiar  rule  of  universal 
application  to  a  proceeding  by  mandamus,  that  the  petition 
must  set  forth  distinctly  all  the  material  facts  on  which  the  re- 
lator relies,  so  that  the  same  may  be  reversed  or  admitted.  It 
must  set  forth  a  clear  right  on  the  part  of  the  relator  to  have 
the  act  performed,  and  set  forth  every  material  fact,  showing 
it  is  the  duty  and  within  the  power  of  the  persons  sought  to 
be  coerced  to  do  the  act.^ 

The  statute  dispensing  with  the  alternative  writ  does  not 
relieve  the  relator  from  the  common  law  requirement  of  show- 
ing a  clear  and  indubitable  right  to  the  relief  demanded.^ 

The  petition  under  our  practice  takes  the  place  of  a  declara- 
tion in  ordinary  actions  at  law  and  it  is  not  necessary  or  even 
permissible  to  plead  mere  evidence.* 

Default,  answer,  etc. — Sec.  2  provides  that  "  Every  defend- 
ant who  shall  be  served  with  summons  shall  be  held  to  show 
cause  by  answer  to  the  petition,  or  to  demur  thereto,  on  the 
return  da}'-  of  the  summons,  or  within  such  further  time  as 
may  be  allowed  by  the  court;  and  in  default  thereof,  judgment 
may  be  taken  nildicit,  and  a  iperem-ptory  7)ianda)m(s  shall  be 
allowed  against  the  defendant." 

A  default  admits  the  facts  averred  in  the  petition  to  be  true, 
but  does  not  admit  that  such  facts  constitute  a  cause  of  action.^ 

576;  Peoi^le   v.   Hyde  Park,  117  III.  on  Mand.  204.205;  StorkCo.  v.  Peo- 

462;  Chicago  v.  Sansum,  87  111.  182;  jjle,  110  111.  577;   Klokke  v.  Stanley, 

Macoupin  Co.  v.  People,  58  111.  191;  109  111.  192;  People  v.  Trustees,  111 

Com.  V.  Jackson,  61  111.   App.  381.  111.  171;  Lavallev.  Saucy,  96  111.469; 

'  Tap.  on  Mandamus,  282.  Peojylex.  Hyde  Park,   117   111.  462; 

^  People  V.  Town  of  Mt.  Morris,  \i5  People  \.  Davis,   39  III.   App.    162; 

III.    427;  People  v.  Supennsors,  125  People  v.  Village,  48  111.   App.  643; 

IW.ZZ^;  Northw.  Board  of  Trade,  Vil  People  v.  Soucy,  26   111.    App.    505; 

111.  296;  Swigert  v.  Hamilton  Co.,  People  v.  Rid^y,  59  111.  App.  653. 

130  111.  538;   People  v.  Hatch,  33  111.  ^  North  v.  Board  of  Trade,  137  111. 

9;    McCagg  v.   Mayor,    51    111.    17;  298. 

Allen  V.  Conlon,  2  Bradw.  166;  Peo-  *  People  v.  Pavey,  151  111.  101. 

pie  V.  City  Council,  QQ   111.507;  Su-  "Madison   Co.   v.  Smith,   95    111. 

pervisors  v.  People,  12   Bradw.  210;  328. 
People  V.  Glann,  70  111.   233;  Moses 


548  MANDAMUS. 

Time  to  plead. — Sec.  3  provides  that  "  The  court  in  which 
any  such  petition  is  filed  may  allow  the  petitioner  or  any  de- 
fendant such  convenient  time  to  answer,  plead,  reply,  rejoin 
or  demur  as  shall  be  deemed  just  and  equitable." 

False  return. — Sec.  6  provides  that  "  If  damages  are  re- 
covered against  the  defendant,  he  shall  not  be  liable  to  be  sued 
in  any  other  action  or  suit,  as  for  making  a  false  return." 

Judgment. — Sec.  5  provides  that  "  If  a  verdict  is  found  for 
the  petitioner,  or  judgment  is  given  for  him  upon  demurrer, 
nil  dicit,  or  for  want  of  an  answer  or  other  pleading,  he  shall 
recover  his  damages  and  costs,  and  a  peremptory  w^rit  of  man- 
damus shall  be  granted.  If  judgment  is  given  for  defendant 
he  shall  recover  his  costs." 

A  personal  judgment  against  a  public  officer,  in  a  proceed- 
ing by  mandamus^  to  compel  the  payment  of  money,  is  erro- 
neous.' 

Where  a  petition  for  a  writ  of  mandamus  asks  the  court  to 
compel  the  performance  of  two  different  acts,  it  maybe  issued 
for  a  part  of  the  relief  sought  and  denied  in  part.^ 

New  defendants. — Sec.  7  provides  that  "  If,  after  the  filing 
of  any  such  petition,  any  other  person  than  the  original  de- 
fendant shall  appear  to  the  court  to  have  or  claim  any  right 
or  interest  in  the  subject-matter,  such  person  may  be  made 
a  defendant,  and  may  be  summoned,  and  appear  and  plead, 
answer  and  demur,  in  the  same  manner  as  if  he  had  been  made 
defendant  to  the  original  petition."  This  section  does  not  give 
to  any  person  who  has  or  claims  an  interest  in  the  subject- 
matter,  the  right  to  interplead  and  ask  affirmative  relief.^ 

Death  of  defendant. — Sec.  8  provides  that  "  The  death, 
resignation  or  removal  from  office,  by  lapse  of  time  or  other- 
wise, of  any  defendant,  shall  not  have  the  effect  to  abate  the 
suit,  but  his  successor  may  be  made  a  party  thereto,  and  any 
peremptory  writ  may  be  directed  against  him."  * 

Eifect  of  other  remedy. — Sec.  9  provides  that  "  The  pro- 
ceedings for  a  w^rit  of  inandaTnus  shall  not  be  dismissed,  nor 

'  Rjogers  v.  Feople,  68  III.  154.  111.  90;  People  v.  lAppincott,  72  111. 

2  Watch  Co.  V.    Pearson,  140  111.      578. 
423;  People  v.  Secretary  of  State,  58  ^  Winstanley  v.  People,  92  111.  402. 

:    <Seel7-WaU.  (U.  S.)604. 


MANDAMUS.  549 

the  "writ  denied,  because  the  petitioner  ma\^  have  another 
specific  legal  remedy  where  such  writ  Avill  afford  a  proper 
and  sufficient  remedy;  and  amendments  may  be  allowed  as  in 
other  civil  suits." 

Prior  to  the  present  statute  mandamus  would  not  lie  where 
there  was  another  adequate  remedy  at  law,'  but  under  the 
statute  as  amended  it  is   otherwise.'' 

The  petition  may  be  amended  to  cure  variance,'  and  so  with 
the  alternative  writ.* 

"Where  a  demurrer  is  sustained  to  the  answer  because  some  of 
the  issues  tendered  are  immaterial,  leave  should  be  given  to 
amend.* 

Sec.  10  provides  that  "  appeals  and  writs  of  error  may  be 
taken  and  prosecuted  in  the  same  manner,  upon  the  same 
terms  and  with  like  effect  as  in  other  civil  cases."  ' 

No.  302.    Petition  for  a  mandamus. 

To  the  Circuit  Court  of  the  County  of ,  in  the  State  of  Illinois. 

The  petitioner,  A.  B.,  of,  etc.,  complaining,  shows  that  at  the  general 

election  held  in  and  for  the  said  county  of ,  on  the  Tuesday  next  after 

the  first  Monday  of  November,  in  the  year  18 — ,  he  was  a  candidate  for  the 
office  of  sheriff  of  the  said  county,  and  received  the  highest  number  of 
votes  for  that  office,  and  was  duly  elected  thereto;  and  that  thereupon  the 
county  clerk  of  the  county  aforesaid,  on,  etc.,  made  out  and  delivered  to 
the  petitioner  a  certificate  of  his  election  to  the  said  office  of  sheriff,  as 
aforesaid;  a  true  copy  of  which  said  certificate,  marked  Exhibit  A,  is  an- 
nexed' to  and  made  a  part  of  this  petition.  And  the  petitioner  further 
shows,  that  within  seven  days  after  the  said  election,  the  said  county  clerk, 
with  the  assistance  of  two  justices  of  the  peace  of  the  said  countj^  made 
out  an  abstract  of  the  votes  cast  for  county  officers  at  the  said  election;  and 
that  thereupon  the  said  county  clerk,  on,  etc.,  enveloped  and  sealed  up  a 
copy  of  the  said  abstract,  and  transmitted  the  same  to  the  secretary  of  state 

for  the  said  State  of  Illinois,  who  afterwards,  on  or  about  the day  of, 

etc.,  duly  received  the  same.  And  the  petitioner  further  shows  that  on  or 
about  the  day  last  aforesaid,  the  governor  of  the  said  state,  by  his  commis- 

'  Highway   Comm.  v.   People,   73  ^  E.  St.  Louis  v.    Underwood,  105 

111.  203.  111.  308. 

2  People    v.    Crotty,   93    III.    180;  •»  Com.  Highways  v.  People,  38  111, 

Lower  v.  U.  S.,  91  U.  S.  536;  E.  St.  347. 

Louis    V.  Millard,  14    Bradw.  483;  ^  Siqo.  Kendall   Co.  v.  People,  13 

Brokawx.  Comm.,  130  111.  482;  Ry.  Ill,  App.  210. 

Co.  V,  Peoj^le,  121  111,  483;  Tow  Co.  v.  «  See  Swift  v.  People,  160  111.  561. 
Thomas,  60  111.  App,  234. 


550  MANDAMUS. 

sion  under  the  seal  of  the  said  state,  duly  commissioned  the  petitioner  as 
sheriff  of  the  county  aforesaid,  to  continue  in  office  for  the  term  of  two 
years;  which  said  commission  was  thereupon  transmitted  by  the  said  secre- 
tary of  state  to  the  clerk  of  the  said  county  court  of  the  county  aforesaid, 

and  was,  on  or  about  the day  of,  etc.,  received  by  C.  D.,  who  then  was, 

and  from  thence  hitherto  has  been,  and  still  is,  clerk  of  the  said  court;  and 
that  thereupon  the  said  C.  D.,  as  such  clerk,  on  the  same  day  gave  notice 
to  the  petitioner  of  the  receipt  of  his  said  commission.  And  the  petitioner 
further  shows,  that  within  thu'ty  days  after  receiving  the  said  notice,  to 
wit,  on,  etc.,  he  entered  into  a  bond,  bearing  date  of  that  day,  with  the 
People  of  the  said  State  of  Illinois,  with  good  and  sufficient  security,  in  the 
penal  sum  of  ten  thousand  dollars,  conditioned  for  the  faithful  discharge 
of  all  the  duties  required  or  to  be  required  of  him  by  law.  as  such  sheriff; 
and  that  at  the  term  of  the  said  county  court  next  after  the  date  of  the  said 
bond,  and  within  thirty  days  after  the  petitioner  received  notice  of  his  said 
commission,  as  aforesaid,  to  wit,  on,  etc. ,  the  said  bond  was  [in  the  said 
court]  duly  approved  by  the  Honorable  L.  M.,  then  judge  of  the  said  court; 
[as  by  the  record  of  the  said  approval,  remaining  in  the  said  court,  more 
fully  appears];  a  true  copy  of  which  said  bond  [and  of  the  said  approval 
thereof  by  the  said  judge,  thereon  written],  is  hereto  annexed,  marked 
Exhibit  B,  and  made  a  part  of  this  petition. 

And  the  petitioner  further  shows,  that  afterwards,  on  the  same  day,  but 
after  the  adjournment  of  that  term  of  the  said  court,  he  tendered  to  the  said 

C.  D.,  so  being  such  clerk  as  aforesaid,  at  his  office  in  ,  in  the  county 

aforesaid,  the  bond  above  mentioned,  [with  the  said  approval  thereon 
written,]  and  offered  to  take  and  subscribe  before  him  the  oath  of  office 
required  by  law  of  sheriffs,  and  then  and  there  requested  the  said  C.  D.,  as 
such  clerk,  to  receive  the  said  bond,  and  to  administer  to  the  petitioner  the 
said  oath  of  office,  and  to  file  and  record  the  said  oath  and  bond,  and  to 
certify  the  taking  and  subscribing  of  the  said  oath  on  the  back  of  the  said 
commission,  and  to  deliver  the  said  commission  to  the  petitioner:  Yet  the 
said  C.  D.,  so  being  such  clerk  as  aforesaid,  then  and  there  wholly  refused, 
and  still  refuses,  to  receive  the  said  bond,  or  to  administer  to  the  petitioner 
the  said  oath  of  office,  or  to  file  and  record  the  said  oath  and  bond,  or  to 
certify  the  taking  and  subscribing  of  the  said  oath  on  the  back  of  the  said 
commission,  or  to  deliver  the  said  commission  to  the  petitioner:  By  means 
whereof,  the  petitioner  is  prevented  from  entering  upon  and  exercising  the 
duties  of  the  said  office  of  sheriff,  and  is  kept  out  of  the  said  office,  to 
which  he  is  justly  and  lawfully  entitled.  Wherefore  the  petitioner  prays  a 
writ  of  mandamus,  directed  to  the  said  C.  D.,  commanding  him  forthwith 
to  receive  the  said  bond,  and  to  administer  to  the  petitioner  the  said  oath 
of  office,  and  to  file  and  record  the  said  oath  and  bond,  and  to  certify  the 
taking  and  subscribing  of  the  said  oatli  on  the  back  of  the  said  commission, 
and  to  deliver  the  said  commission  to  the  petitioner;  and  that  such  further 
order  may  be  made  in  the  premises  as  justice  may  require,  etc.^ 

A.  B. 

>  People  V.  Fletcher,  3  Scam.  483. 


mandamus.  551 

State  of  Illinois,  ) 

County  of .     )  set.     A.  B. ,  the  petitioner  in  the  foregoing  petition 

named,  makes  oath  and  says,  that  the  several  matters  and  things  in  the 
said  petition  contained  are  true,  to  the  best  of  his  knowledge,  information 
and  belief.' 

A.  B. 

Subscribed  and  sworn,  etc' 

See  the  substance  of  a  petition  for  a  mandamus  to  compel  a 
municipal  corporation  to  pay  the  amount  of  a  judgment  ob- 
tained against  it,  50  111.  160;  the  substance  of  a  petition  for  a 
mandamits  to  compel  a  county  clerk  to  make  out  and  deliver 
a  certificate  of  election,  29  111.  413;  a  petition  for  a  writ  to 
compel  a  municipal  corporation  to  complete  the  collection  of  a 
certain  tax  specially  assessed,  for  the  opening  of  a  street,  and 
to  pay  the  damages  awarded  to  the  petitioner,  18  111,  276;  to 
compel  a  county  judge  (under  a  special  statute)  to  ascertain, 
with  the  mayor  of  a  city,  the  pro]3ortion  of  taxes  to  be  paid  to 
the  city,  25  111.  187;  to  compel  the  auditor  to  allow  damages 
on  protested  bank  bills,  out  of  the  proceeds  of  stocks  sold  on 
the  winding  up  of  a  bank,  29  111.  48;  to  compel  the  judges  of  a 
court  to  receive  the  appearance  of  a  defendant  in  an  action, 
with  or  without  entering  of  special  bail,  Moses  on  Mandamus, 
237;  to  compel  a  city  council  to  pass  an  order  on  the  treasurer, 
Id.  239. 

DEFENSES. 

The  Illinois  practice  act,  as  above  mentioned,  provides  that 
the  issues  in  "an  action  ot mandamus,^''  shall  be  made  up  "  by 
answering,  pleading  or  demurring  to  the  petition,  as  in  other 
cases."  ' 

For  demurrers,  see  Defenses  to  an  Action,  ante^  page  60. 

Pleadings. — Section  4  provides  that  "  The  petitioner  may 
plead  to  or  traverse  all  or  any  of  the  material  facts  contained 
in  the  answer,  or  demur  thereto,  to  which  the  defendant  shall 
reply,  take  issue  or  demur,  and  like  proceeding  shall  be  had  as 
in  other  cases  at  law." 

Under  our  statute,  a  mandamus  proceeding  is  an  action  at 

1  Moses  Mand.  238,  241;  Ex  parte  22  Starr  &  Curtis  1587;  Rev.  Stat. 

Taylor,  14  How.  (U.  S.)  3;  People  v.       (1893)  957;  Rev.  Stat.  (1895)  1020. 
Chicago,  25  111.  483. 


552  MANDAMUS. 

law,  and  it  is  therefore  governed  by  the  same  rules  of  plead- 
ing that  are  applicable  to  other  actions  at  law.'  Under  the 
former  practice,  in  proceedings  for  mandamus,  the  defendant's 
return  to  the  alternative  writ,  corresponded  to  the  answer  to 
the  petition  under  the  present  practice.  Under  the  present 
statute,  the  petition  takes  the  place  of  the  alternative  writ, 
and  the  defects  therein  are  taken  advantage  of  in  the  same 
manner  as  defects  in  the  alternative  writ  were  formerly 
reached.^ 

Substantial  defects  in  a  petition  may  be  taken  advantage  of 
at  any  time  before  granting  the  peremptory  writ.  Where,  un- 
der the  former  practice,  the  return  to  the  alternative  writ  con^ 
troverted  no  facts  alleged  in  the  writ,  the  return  was  held  to 
have  the  effect  of  a  demurrer  only." 

The  answer  of  pleas  must  either  deny  the  facts  alleged  in 
the  petition,  on  which  the  claim  of  the  relator  is  founded,  or 
must  set  up  other  facts  sufficient  in  law  to  defeat  such  claim, 
and  these  facts  should  be  alleged  positively  and  distinctly; .' 
and  if  instead  of  stating  facts,  the  pleading  merely  sets  out 
and  refers  to  matters  of  evidence  from  which  these  facts  are 
inferred,  it  is  objectionable." 

All  the  material  facts  alleged  in  the  petition,  not  denied  by 
the  pleadings  of  the  respondent,  will  be  taken  as  true;*  and 
every  intendment  will  be  made  against  an  answer  or  plea 
which  is  not  responsive  to  the  important  allegations  of  fact 
contained  in  the  petition.* 

It  is  not  sufficient  to  aver  conclusions  of  law.'    If  an  answer 

^Dement  v.  Rokker,  126  111.  174;  v.  Baker,   35  Barb.   105;  Commoni- 

Super.  V.  People,  159  111.  242;  Sttn/f  wealth  v.  Commissioners,  37  Penn. 

V.  People,  160  111.  561.  St.  237. 

2  People  V.  Crabb,  156  111.  155.  «  jj.  jr.  Co.  v.  Suffern,  129  111.  274; 

*  People  V.  Mt.  Morris,  145  111.  427.  Supervisors  Madison   Co.  v.  Smith 

*R.  R.  Co.  V.  Suffern,  129111.  274;  95  111.  328;  People  v.  Cm6&,156  111. 

People  V.  Horton,  46  111.  App.  434;  155. 

Bank  \.  Canal  Com.,  10  Wend.  20;  ■>  People    v.  Kilduff,    15    111.  492; 

People  V.  Baker,  35  Barb.  105;  Peo-  People  v.  Supervisors,   51  111.    191; 

pie  V.  Crabb,  156  111.   155;  Board  v.  People  v.   Horton,  46  111.  App.  434; 

Nelson,  62  111.  App.  541.  Board  v.  Nelson,  62  111.  App.  541. 

s  Moses  on  Mandamus  210;  Bank  ^  People  v.  Sujiervisors,  51  111.  191. 

V.  Canal  Com.,  10  YJ end.  20;  Peoj^le 


MANDAMUS.  553 

or  plea  is  insufficient,  the  relator  raa}'-  demur; '  but  a  demurrer 
admits  the  truth  of  the  matters  set  forth  in  the  answer  or 
plea.^ 

And  when  the  answer  shows  the  non-joinder  of  necessary 
parties  plaintiff,  a  general  demurrer  thereto  will  be  an  admission 
of  that  fact.' 

Where  there  is  no  issue  of  fact  made  by  the  pleadings,  upon 
which  the  determination  of  the  right  of  the  relator  to  the 
peremptory  writ  depends,  the  answer  will  be  treated  as  a  de- 
murrer to  the  petition,  and  the  right  to  the  writ  will  depend 
upon  the  sufficiency  of  the  petition  on  its  face/ 

On  demurrer  to  a  petition  for  a  mandamus  by  a  part  of  the 
respondents,  the  question  as  to  the  sufficiency  of  the  service 
upon  one  not  appearing  can  not  arise.  The  only  question  pre- 
sented is  the  sufficiency  of  the  petition.^  If  the  respondent 
answers  to  the  merits  after  his  demurrer  to  the  form  of  the 
petition  is  overruled,  he  will  thereby  waive  his  grounds  of 
demurrer,  and  can  not  urge  the  same  objection  to  the  petition 
after  trial  on  the  merits." 

A  petition  for  mundamus  is  subject  to  be  barred  by  statute 
of  limitations.^ 

No.  303.    Ansicer  to  a  petition  for  a  mandamus. 

In  the Circuit  Court. 

Term,  18—. 

The  answer  of  C.  D.,  defendant,  to  the  petition  of  A.  B.,  petitioner,  for 
a  vrrit  of  mandamus. 

The  defendant,  for  answer  to  the  said  petition,  says,  that  (here  deny,  or 
confess  and  avoid,  or  admit,  some  material  allegation  of  the  petition.) 

And  the  defendant  further  answewng,  says,  that  Qiere  deny,  or  confess 
and  avoid,  or  admit,  some  other  material  allegation  of  the  petition;  and 
proceed  in  this  manner  until  the  whole  petition  is  answered). 

Wherefore  the  defendant  prays  the  judgment  of  the  court  here,  whether 

the  petitioner  ought  to  have  a  writ  of  mandamus  in  this  behalf;  and  that 

he,  the  defendant,  may  be  hence  dismissed,  with  liis  costs,  etc. 

CD. 
1 

'  Moses  on  Mand.  214.  '  People  v.  Town  of  Mt.  Morris, 

s  Peojjle    V.   Supervisors,   47  111.       137  111.  576. 

256;  Dement  v.  Rokker,  126  111.  174.  «  I.  C.  R.  R.  Co.  v.  People,  143  III. 

3  Deinent  v.  Rokker,  126  111.  174.      434. 

«  People  V.  Mt.  Morris,  145  111.  427.  '  Super,   v.  Gordon,  82    111.    435; 

Meeuts  v.  Monroe,  62  111.  App.  17. 


554  MANDAMUS. 

Nn.  304.    Plea  to  a  petition  for  a  mandamus. 

In  the Circuit  Court. 

Term,  18—. 

C.  D.  ^ 

The  People/ etc.,  ex  rel.    \  Proceeding  for  mandamus. 

A.  B.  J       And  the  defendant,  by  E.  F.,  his  attorney, 

comes  and  defends,  etc.,  and  says  that  the  peti- 
tioner ought  not  to  have  a  writ  of  mandamus  agaist  him,  the  defendant,  in 
this  behalf,  because  he  says,  that  {here  set  forth  the  subject-matter  of  the 
defense.  If  the  jjlea  merely  denies  an  allegation  of  the  petition,  conclude 
to  the  country.  If  it  sets  up  neiv  matter,  conclude — "And  this  the  defend- 
ant is  ready  to  verify;  wherefore  he  prays  judgment  if  the  petitioner  ought 
to  have  a  writ  of  mandamus  against  him  in  this  behalf,  etc.)" 

If  the  defendant  desires  to  deny  more  than  one  material 
averment  of  the  petition,  or  to  set  up  several  defenses,  he 
should  plead  as  many  distinct  pleas  as  there  are  matters  of 
fact  to  be  traversed,  or  defenses  to  be  presented. 


CHAPTER  XYIL 

CERTIORARI. 

Certiorari  is  the  name  of  a  judicial  writ  issued  by  a  superior 
court,  directed  to  one  of  an  inferior  jurisdiction,  commanding 
the  latter  to  certify  and  return  to  the  former  the  record  in  the 
particular  case.' 

I.      THE  COMMON  LAW  WRIT. 

The  general  rule  seems  to  be,  that  this  writ  lies  only  to  infe- 
rior tribunals  and  officers  exercising  judicial  functions,  and  the 
act  to  be  reviewed  must  be  judicial  in  its  nature,  and  not  min- 
isterial or  legislative.  But  it  is  not  essential  that  the  proceed- 
ings shall  be  strictly  and  technically  "judicial,*'  in  the  sense 
in  which  that  word  is  used  when  applied  to  courts  of  justice. 
It  is  sufficient  if  they  are  qucm  judicial.' 

A  body,  municipal  or  otherwise,  to  which  power  has  been 
intrusted,  does  not  exercise  judicial  action  merely  because  it 
is  vested  with  discretion,  or  may  exercise  judgment.^ 

The  common  law  remedy  of  certiorari  is  adopted  and  in 
force  in  this  state,  and  any  court  exercising  general  common 
law  jurisdiction  has,  unless  expressly  forbidden  to  do  so  by 
the  statute,  an  inherent  authority  to  issue  the  writ.^ 

It  is  not  a  writ  of  right,  but  issues  only  under  proper  appli- 
cation and  proper  cause  shown,^  and  only  when  a  court,  upon 

'  Deer  V.  Comm.,  109  111.  879;   En-  Brown  v.  Robertson,   123  HI,    631; 

nis  V.  Ennis,  110  111.  78;    Comm.  v  Mayor  v.  Dean,  62  III.  App.  41, 

Supervisors,  27  111.  140;    Peterson  v,  ^ Mayor  v.  Dean,  62  111.  App.,  and 

Lawrence,  20  Bradw.  631 ;  Hamilton  cases  there  cited. 

V.  Haru-ood,  113  111.  154;  Hyslop  v.  *  Com.  v.  Griffin.  134  HI.  330. 

Mnc/i,  99  111,  171;    Randolph  \.  Co.  ^Com.   v.   Griffin,    134    111.    330; 

Board,  19  Bradw.  100.  Chapman  v.  Com.,  28  111.  App.  17; 

2Com.  V.    Griffin,     1.34    111.    330;  Lees  v.  Dram,  Cow.,  24  111.  App.  488. 
Wliittaker  v.  Village,   150  111,   195; 

(555) 


556  CEKTIOEARI. 

investigation,  and  in  the  exercise  of  sound  legal  discretion, 
can  see  that  justice  requires  it.' 

The  only  office  which  the  common  law  writ  of  certiorari  per- 
forms, is  to  cause  the  record  of  a  proceeding  to  be  certified  from 
an  inferior  to  a  superior  tribunal.  Upon  service  of  the  writ 
it  becomes  the  duty  of  the  inferior  tribunal,  to  which  it  is 
directed,  to  transmit  a  full  and  complete  transcript  of  the 
record  of  the  proceeding,  of  which  complaint  is  made,  to  the 
court  awarding  the  writ.  Nothing  outside  of  the  record 
should  be  certified,  but  simply  the  record  itself.  Upon  the 
return  of  the  writ,  the  cause  is  tried  solely  upon  the  record; 
and  allegations  in  the  petition,  of  matters  outside  of  the  rec- 
ord, will  not  be  considered.  No  trial  can  be  had  upon  any 
issue  of  fact.  When  the  return  is  sufficient,  the  court  will 
determine,  upon  the  record  alone,  whether  the  inferior  tribunal 
had  jurisdiction  of  the  parties  and  of  the  subject-matter,  and 
whether  it  had  exceeded  its  jurisdiction,  or  otherwise  pro- 
ceeded in  violation  of  law." 

When  the  controversy  involves  the  investigation  of  facts 
not  appearing  in  the  record,  certiorari  is  not  the  proper 
remedy.' 

If  the  want  of  jurisdiction  appears  from  the  record,  the 
proper  judgment  is  that  the  record  be  quashed.* 

The  writ  will  not  lie  merely  because  proceedings  have  been 
commenced  before  a  tribunal  that  has  no  jurisdiction,  when 
the  tribunal  has  not  taken  final  action  on  them,  and  has  made 
no  order  which  must,  of  itself,  injuriously  affect  the  party 
suino-  out  the  writ,  unless  it  shall  be  annulled  by  a  court  of  re- 
view.^ 

The  common  law  proceeding  is  wholly  different  from  that 

1  Board  Srip.  v.  Magoon,  109  111.  Com.,  109  III.  379;  McMamis  v.  3Ic- 

142;  Trustees  v.  Sch.  Dir.,  88  111.  100;  Donough,  107  111.  95;   Com.  v.  Grif- 

People  V.  Trustees,  43  111.  App.  650.  fin,  134  111.  330;   Blair  v.   Sennott, 

^Com.  V.  Supervisors,  27  111.  140;  134  111.  78. 

Com.  V.  Harper,    38    111.    104;  Ry.  ^Smithy.  Com.  150  111.  385;  Ran- 

Co.  V.  Fell,  22   111.  333;  Donahue  v.  decker  v.  Com.,  61  III.  App.  426. 

County,    100  111.    94;    Peterson  v.  *  Smith  \.  Com., \bOl\\.'&S^;  Com. 

Lawrence,  20  Bradw.  631;  Gerdes  v.  v.  Griffin,  134  111.  330. 

Champion,    108  111.    137;    Deer  v.  ^  Glennon  v.  Burton,  144  111.  551. 


PERTIORAKI.  557 

under  the  statutory  writ  of  cet^tiorari  (in  Illinois),  as  in  the 
latter  there  is  a  trial  de  novo} 

The  common  law  writ  of  certiorari  may  issue  to  all  inferior 
tribunals,  in  cases  where  they  have  exceeded  their  jurisdic- 
tion, and  in  cases  where  they  have  proceeded  illegally,  and 
there  is  no  appeal,  or  other  mode  of  directly  reviewing  their 
proceedings.  These  are  the  only  instances  in  which  the  pro- 
ceedings of  such  inferior  tribunals  can  be  reviewed  on  certio- 
rari? 

In  case  a  court  refuses  to  make  a  record  of  its  proceedings, 
the  remedy  is  not  by  certiorari^  but  by  mandamus/ 

A  writ  of  certiorari  at  common  law  to  review  the  record  of 
a  justice  of  the  peace  for  illegality  in  the  proceeding,  does  not 
lie  until  the  justice  has  rendered  a  final  judgment.  The  writ 
can  not  be  made  to  operate  as  an  injunction  and  restrain  a  tri- 
bunal from  acrting  beyond  its  jurisdiction.* 

Mere  lapse  of  time  alone,  short  of  the  limitation  for  the 
prosecution  of  a  writ  of  error,  will  not  bar  the  issuing  of  a 
common  law  certiorari? 

To  be  barred  by  ladies^  it  must  appear  that  since  the 
making  of  the  record,  sought  to  be  reviewed,  and  upon  its  as- 
sumed validity,  something  has  been  done  so  that  great  public 
detriment  or  inconvenience  might  result  from  declaring  it 
invalid." 

The  writ  is  obeyed  by  returning  and  certifying  the  record  of 
the  proceedings  of  the  inferior  tribunal,  or  the  entries  made  by 
it  in  the  nature  of  a  record.  A  common  law  certiorari  re- 
moves nothing  more;  and  if  the  return  contains  anything  more 

1  Gallimore  v.  Dazey,  12  III.  142;  138;  Glennon  v.  Burton,  144  111.  551 ; 
Comm.  v.  Supervisors,  27  111.  140.  Trustees  v.  Shepherd,   139  111.   114; 

2  R.  R.  Co.  V.  Whipple,  22  111.  108;  Schlink  v.  Maxton,  153  111.  447;  Lees 
Doolittlev.  R.  R.  Co.,  14  111.  381;  v.  Dr.  Com.  125  111.  47;  People  v. 
People  V.  Wilkinson,  13  111,  660;  Neicherry,  135  111.  471;  Mayor  v. 
City  of  Ottaiva  v.R.  R.   Co.,  25  111.  Dean,  62  111.  App.  41. 

43;  Rue  v.  Chicago,  66  111.  256;  3Iil-  ^  Blair  v.  Sennott,  134  111.  78. 

ler  V.  Tnistees,  88111.  26;  Supervisors  *  Glennon  v.  Burton,  144  111,  551. 

V.  Blagoon,  109  111.  142;  Hamilton  v.  "  Hyslopv.  Finch,  99  111,  175. 

Harwood,  113  lU.  154;   Drain.  Com.  « Dr. Com.  v.  Voike,  59  111.  App.  286; 

V.  Griffin,  134 111.  330;  Smith  v.  Com. ,  see  Trustees  v.  Sdi.  Dir. ,  88  111.  100. 
150  Dl.  385;  Wright  v.  Ccnn.,  150  111. 


558  GERTIOKAEI. 

it  will  be  rejected  or  disregarded  jt?yo  tanto}  The  writ  can  not. 
in  general,  bring  up  for  review  the  evidence,  and  the  rulings 
and  decisions  of  the  inferior  tribunal  thereon,  but  only  the 
record.  "When  there  is  technically  no  record,  the  written  pro- 
ceedings and  orders,  or  a  history  of  the  proceedings  and  the 
written  orders,  w^hich  are  in  the  nature  of  records,  are  to  be 
certified." 

If  the  writ  has  issued  in  an  improper  case,  the  defendant 
may  move  to  quash  it;  and  the  court  will  quash  it  even  after  a 
return,  and  a  hearing  on  the  merits.'' 

See  a  petition  for  a  common  law  certiorari^  20  111.  R.  537. 

This  writ  is  sometimes  used  as  an  auxiliary  process  to  obtain 
a  full  return  to  some  other  process.  For  example,  Avhen  the 
record  of  an  inferior  court  is  taken  before  a  superior  court  by 
appeal,  writ  of  error,  or  otherwise,  and  a  suggestion  of  a  dim- 
nution,  etc.,  is  made,  a  certiorari  will  be  granted,  requiring  a 
true  record  to  be  sent  up.*  It  is  the  proper  remedy  to  review 
the  proceedings  of  commissioners  of  highways  in  establishing 
a  road.^ 

II.       THE    STATUTOET  WRIT. 

The  statute  of  Illinois  provides  as  follows : 

"  The  judges  of  the  courts  to  wiiich  appeals  may  be  taken, 
shall  have  power,  within  their  respective  jurisdiction,  and  it 
shall  be  their  duty,  upon  petition  made  as  hereinafter  men- 
tioned, to  grant  writs  of  certiorari^  to  remove  causes  from  be- 
fore justices  of  the  peace  into  their  courts,  who  shall  indorse 
an  order  for  the  same  upon  the  petition  of  the  party  praying 
such  writ;  and  on  producing  the  same  to  the  clerk  of  the  court 
he  shall  issue  said  writ  in  conformity  to  the  provisions  of  this 
act. 

'Green's    Pr.    497;    Mc3Icinus  v.  James    v.   Hughitt,   2    Scam,   361; 

McDonough,  107  111.  95.  Boynton  v.  ChampHn,  40  111.  63;  see 

"  Stone  y.    Mayor,  25  Wend.  168;  Ennisx.  Ennis,  UO  III.  18;  Scales  v. 

see  3Iiller  v.    Trustees,   88  111.    26;  By.  Co.,  104  111.  93. 
Trustees  v.   Directors,   88  111.    100;  ^  Trainer  v.  Lawrence,  36  III.  App. 

Savage  v.  Corners,  10  Bradw.  204.  90;  Com.  v.  Newhy,  31  111.  App.  378; 

M  How.  Pr.  141;  Ennis  v.  Ennis,  Ravette  v.   Race,  153  111.  672;  Com. 

110  111.  78.  V.  Hohlit,  19  111.  App.    259;   Broton 

*  Holmes  v.  Parker,  1   Scam.  567;  v.  Roberts,  23  111.  App.  461. 


CEKTIOKARI.  559 

"  The  petition  for  a  writ  of  certiorari  shall  set  forth  and 
show,  upon  the  oath  of  the  applicant,  or  his  agent,  that  the 
judgment  before  the  justice  of  the  peace  was  not  the  result  of 
n3gligence  in  the  party  praying  such  writ;  that  the  judgment, 
in  his  opinion,  is  unjust  and  erroneous,  setting  forth  wherein 
the  injustice  and  error  consists,  and  that  it  was  not  in  the 
power  of  the  party  to  take  an  appeal  in  the  ordinary  wav, 
setting  forth  the  particular  circumstances  which  prevented 
him  from  so  doing. 

"  Xo  writ  of  certiorari  shall  issue  after  the  expiration  of  six 
months  from  the  time  of  the  rendition  of  judgment,' 

"  Before  any  writ  of  certiorari  shall  issue,  the  party  applying 
therefor  shall  give  bond,  with  security,  in  the  same  manner 
and  with  the  same  conditions,  and  when  the  same  shall  be 
defective,  may  be  perfected  as  bonds  in  cases  of  appeals  from 
justices  of  the  peace.  The  writ  of  certiorari  shall  require  the 
justice  to  certify  to  the  court  issuing  the  writ  a  transcript  of 
the  judgment  and  other  proceedings  had  before  him;  and  in 
no  case  shall  the  justice  be  required  to  send  up  a  minute  or 
memorandum  of  the  evidence  given  before  him;  but  upon  the 
return  of  said  writ,  such  proceedings  shall  be  had  thereon  as 
in  cases  of  appeals."  " 

The  statute  also  provides  that  one  or  more  of  several  plaint- 
iffs or  defendants  may  sue  out  a  cei'tiorari  without  the  con- 
sent of  the  others;  and  all  further  proceedings  are  thereupon 
to  be  stayed,  the  same  as  if  all  had  united  in  such  certiorari? 

A  writ  of  certiorari  is  also  given  in  oases  of  the  trial  of  the 
right  of  property  before  justices  of  the  peace.*  Masters  in 
chancery,  in  their  respective  counties,  may  order  the  issuing  of 

^  Graff  V.  Smolensky,  35  111,  App.  Ravdall,  26  III.  243;  Ottcyi  v.  Lehr, 

264.  68  111.  64;  Darmstadter  v.  Aimaur, 

'2   Starr  &  Curtis,  1461-2;    Rev.  17  Bradw.  285;  Hough  v.  Baldwin, 

Stat.  (1895)  974;  Yunt  v.  Broirn,  1  16  111.  294;   Bussell  v.  Pickering,  17 

Scam.    264;     Cushman    v.    Rice,    1  111.  31. 

Scam.  565;   Lord  v.  Burke,  4  Gilm.  ^  2  Starr  &  Curtis,  1454;  Rev.  Stat. 

363;    Hoare    v.  Harris,   14    111.  35;  (1895)  966;  see  Flinn  v.  Barlow.  16 

Murray  v.  Murphy,  16  111.  275;  Clif-  111.  39. 

ford  v.  Waldrop,  23  111.  336;  Harri-  « 2  Starr  &  Curtis,  1469;  Rev.  Stat. 

son  v.  Chipp,  25  111.  575;   Davis  v.  (1895)  969. 


560  CERTIOEAKI. 

writs  of  certiorari,  to  remove  causes  from  before  justices  of 
the  peace  into  the  proper  court. 

Requisites  of  petition,  etc. — A  petition  for  a  writ  of  cer- 
tio7'ari  must  clearly  point  out  wherein  the  injustice  of  the 
judgment  complained  of  consists.  Allegations  of  injustice, 
made  in  general  terms,  will  not  suffice.  It  must  state  facts 
sufficient  to  show  that  injustice  has  been  done.' 

The  statute  requires  that  the  petition  "  shall  set  forth  and 
show  that  the  judgment  before  the  justice  of  the  peace  was 
not  the  result  of  negligence."  This  requirement  can  only 
be  fulfilled  by  setting  forth  facts  which  show  that  the  party 
was  not  o-uilty  of  negligence  in  not  attending  to  the  defense 
of  the  cause  before  the  justice.^  The  mere  statement  that  the 
judgment  was  not  the  result  of  the  negligence  of  the  peti- 
tioner, does  not  show  that  such  was  the  case;  that  is  a  con- 
clusion for  the  court  to  draw  from  the  facts  alleged." 

Where  a  party  permits  a  judgment  to  go  by  default,  before 
a  justice  of  the  peace,  with  the  intention  of  taking  an  appeal 
to  the  circuit  court,  and  contesting  the  merits  in  that  court,  a 
petition  for  certiorari  will  not  be  sustained.  Diligence  must 
be  used  to  prevent  the  judgment  in  the  justice's  court.* 

It  is  not  sufficient  to  aver  that  the  justice,  in  receiving  or 
rejecting  testimony,  or  in  any  matter  arising  upon  the  trial, 
erred  in  point  of  law,  if  the  petitioner  is  not  injured  by  the 
final  determination,  in  the  amount  of  the  judgment  recovered." 

Where  a  petition  is  based  on  the  ground  that  the  petitioner 
did  not  know  of  the  rendering  of  a  judgment  against  him 
until  the  twenty  days  in  which  the  appeal  might  have  been 
taken  had  elapsed,  by  reason  of  his  being  misled  by  the  oppo- 
site party,  he  should  state  how  and  by  what  he  was  misled; 

i Harrison  v.  CMpp,  25  111.  575;  ^Clifford v.  Waldrup,  23  111.336 

Davis  V,  Randall,  26  111.  243;  Mur-  Russell  v.  Pickering,  17  111.  31;  Har- 

ray  v.  Murphy,  16  111.  275;  Bank  v.  rison  v.  CMpp,  25  111.  575;  Doan  \ 

Beresford,  78  111.  392;  Cole  v.  Atkin-  Sibbitt,(jl  111.  485;  Trustees  v.  Kem 

son,   6  Bradw.    353;    C.    B.    Co.  v.  per,  88  111.  579. 
Brewer,  57  111.  App.  526.  *  Murray  v.  Murphy,  16  111.  275 

^Stocking  v.  Knight,  19  111.  App.  O'Hara  \.  O'Brien,  4  Bradw.  154. 
501;  R.  R.  Co.  v.  McCoy,  23  111.  App.  ^  Ho^igh  v.  BalduHn,  16  111.  293 

143,  Trustees  v.  Kemper,   88  111.  579. 


CEETIOKAEI.  561 

and  he  should  show  diligence,  by  an  inspection  of  the  justices' 
docket  or  otherwise,  to  ascertain  what  order  had  been  made 
in  the  suit,  or  some  reason  why  this  was  not  done.' 

The  petition  must  also  allege  that  it  was  not  in  the  power 
of  the  party  to  take  an  appeal  in  the  ordinary  way,  and  must 
set  forth  particularly  the  circumstances  that  prevented  him 
from  so  doing.^ 

Where  a  petition  alleged  that  the  petitioner  was  a  poor  man, 
and  that  it  took  him  several  days  after  the  rendition  of  judg- 
ment to  procure  security  on  the  appeal  bond;  that  fourteen  or 
fifteen  days  after  the  rendition  of  judgment  he  called  at  the 
justice's  office  for  the  purpose  of  procuring  the  proper  papers 
and  perfecting  his  appeal,  but  the  justice  was  absent  from  his 
office,  and  the  petitioner,  after  dihgent  inquiry,  was  unable  to 
learn  where  he  was;  that  on  the  last  day  when  he  could  have 
taken  the  appeal,  he  again  called  at  the  justice's  office,  and 
again  failed  to  find  him,  making  the  same  inquiry  as  at  the 
first  time;  it  was  decided  that  sufficient  diligence  w^as  not 
shown.  No  reason  appeared  why  the  petitioner  did  not  enter 
his  appeal  with  the  clerk  of  the  court.^ 

Where  a  petition  states  that  the  petitioner  had  been  sum- 
moned as  garnishee  in  a  number  of  cases,  before  the  same 
justice  of  the  peace,  and  was  discharged  after  examination,  by 
the  justice,  and  had  no  knowledge  that  a  judgment  was  ren- 
dered against  him,  until  it  was  too  late  to  take  an  appeal,  and 
that  the  judgment  was  unjust,  showing  wherein,  he  can  have 
relief  by  writ  of  certiorari* 

Where  a  petition  of  a  guardian  for  a  writ  of  certiorari 
stated  that  he  was  taken  sick  shortly  after  the  service  of  proc- 
ess upon  him,  and  continued  unable  to  transact  business  until 

^  Davis  Y.  Randall,  26  111.  243;  see  Harris,   14  111.  35:  Dye  v.  Noel,  85 

Fitzgerald  v.  Kimball,   86  111.   396;  111.  290;  Darmstadter  \ .  Armour,  17 

Bank    v.    Beresford,    78    111.    391;  Brad w.  285;  i2ej7/?/  v.  Prince,  37  111. 

CfHarav.  O'Brien,  4  Bradw.  154;  see  App.  102. 

McDonald  V.  WiUianis,  ^\  IlL  App.  ^  White    v.     Frye,    2    Gilm.    65; 

378.  Darmstadter  v.  Armour,  17  Bradw. 

^Holmes  v.  Parker,  1  Scam.  567;  285. 

see    Lord  v.    Burke,   4    Gilm.    363:  * McNeTmey  v.  Newberry,  S7  III.  91; 

Davis  V.  Randall,  26  111.  243;  Har-  Pierce  v.  Wade,  19  Bradw.  185. 
iHson  V.  Chipp,  25  111.  575;  Hoare  v. 
86 


562  CEETIOKAEI. 

after  the  trial;  that  as  soon  as  he  was  able  to  attend  to  busi- 
ness, and  within  twenty  days  after  judgment,  he  demanded 
an  appeal,  which  was  refused  on  the  ground  that  it  should 
have  been  taken  on  the  day  of  trial;  and  that  the  judgment 
was  not  upon  a  valid  claim  against  the  estate;  it  was  held  that 
the  petition  entitled  the  guardian  to  the  writ.' 

A  petition  for  a  certiorari^  to  bring  up  the  proceedings  had 
before  a  justice  of  the  peace,  must  stand  on  its  merits;  affida- 
vits in  support  of  it,  or  against  it,  can  not  be  read.^  The 
court  will  take  into  consideration  the  condition  of  a  party, 
where  he  shows  in  his  petition  circumstances  that  prevented 
his  using  diligence;  as  that  he  was  a  physician,  and  was  nec- 
essarily attending  upon  patients  dangerously  ill,  etc.;  or  that 
he  was  sick  at  the  time  the  judgment  was  rendered  against 
him,  and  unable  to  attend  the  trial,  etc.* 

Where  a  statute  gives  an  appeal  from  an  assessment  of 
damages  for  a  right  of  way,  a  certiorari  will  be  sustained,  it 
appearing  that  the  petitioner  had  no  notice  of  the  assessment, 
or  opportunity  to  appeal.  A  certiorari  in  such  a  case  is  in  the 
nature  of  an  appeal  from  the  decision  of  a  justice  of  the  peace, 
and  governed  by  the  same  rules.*  A  judgment  entered  by  a 
justice  of  the  peace,  which  is  based  upon  an  admission  by  the 
defendant  of  the  amount  due,  is  not  entered  by  confession, 
and  a  writ  of  certiorari  lies  to  remove  the  cause  in  which  such 
judgment  is  entered  to  the  circuit  court.*  No  question  of 
laches  is  involved  upon  the  issuance  of  a  writ  of  certiorari  at 
any  time  during  the  period  prescribed  by  the  statute.** 

iVb.  S05.    Petition  for  a  certiorari  to  a  justice  of  the  peace. 

To  the  Honorable  L.  M.,  Judge  of  the court  of  the  county  of  , 

in  the  State  of  Illinois, 
Your  petitioner,  A.  B.,  of,  etc.,  complaining  shows,  that  C.  D.,  of,  etc., 

^Hoarev.  Harris,  14  111.  35;  Otten  *R.  R.  Co.  v.  Barrows,  24  IlL  562: 

V.  Lehr,  68  111.  64.  Shinkle     v.    Magill,    58    111.     422; 

»  Datis  V.   Randall,  26  111.    243;  Hyslojy  v.  Finch,  99  111.  171. 

Harrison  v,  Chipp,  25  111.  575;  Fitz-  ^  Goddard  v.  Fisher,  23  111.  App. 

gerald  v.  Kimball,  86  111.  396.  365. 

3  Cook  V.  Hoyt,  13  111.  144;  Hoare  « Graff  v.  Smolensky,  35  111.  App. 

V.  Harris,  14  111.  35;  White  v.  Frye,  264. 
2Gilm.  65. 


CEBTIOKARI.  563 

on  the day  of,  etc.,  commenced  an  action  against  your  petitioner,  be- 
fore one  G.  H.,  then  and  still  being  one  of  the  justices  of  the  peace  in  and 

for  the  said  county  of ,  to  recover  the  sum  of dollars,  alleged  to  be 

due  from  your  petitioner  to  the  said  C.  D.,  for  {here  the  subject-matter  of  the 
alleged  debt  may  be  stated);  and  that  afterwards,  on,  etc.,  the  said  justice 
rendered  judgment  against  your  petitioner,  in  that  action,  for  the  sum  of 
dollars,  and  costs  of  suit;  which  matters  aforesaid  appear  to  your  peti- 
tioner from  the  docket  of  the  said  justice,  and  the  papers  in  that  behalf 
filed  and  remaining  in  his  office.  And  your  petitioner  further  shows  that 
at  the  time  of  the  commencement  of  the  said  action,  and  from  thence  con- 
tinually until  more  than  twenty  days  had  elapsed  after  the  rendition  of  the 
said  judgment  as  aforesaid,  your  petitioner  was  absent  from  this  state:  and 
that  during  all  that  time  your  petitioner  had  no  knowledge  or  information 
of  the  commencement  or  pendency  of  the  said  action,  or  of  the  rendition  of 
the  said  judgment,  as  aforesaid;  and  that  therefore  your  petitioner  could 
not  take  an  appeal  from  the  said  judgment  in  the  ordinary  way.  And  your 
petitioner  further  shows  that  he  was  not  at  the  time  of  the  commencement 
of  the  said  action  as  aforesaid,  nor  is  now,  in  any  manner  indebted  to  the 
said  C.  D.;  and  that  the  said  judgment  is  therefore  wholly  unjust  and 
erroneous.  Your  petitioner  therefore  prays  a  writ  of  certiorari,  to  remove 
the  said  cause  from  before  the  said  justice  into  the  said court,  accord- 
ing to  the  form  of  the  statute  in  such  case  made  and  provided. 

A.  B. 
State  of  Illinois,  ) 

County  of .     J  set.  A.  B. ,  the  petitioner  in  the  foregoing  petition 

named,  makes  oath  and  says  that  the  matters  and  things  in  the  said 
petition  contained  are  true  in  substance  and  in  fact. 

A.  B. 

Subscribed  and  sworn,  etc. 

If  made  by  an  agent,  the  affidavit  may  be  as  follows : 

"J.  K.  makes  oath  and  says  that  he  is  the  agent  in  this  behalf  of  A.  B,, 
the  petitioner  in  the  foregoing  petition  named;  and  that  the  matters  and 
things  in  the  said  petition  contained  are  true,  to  the  best  of  this  affiant's 
knowledge,  information  and  belief." 

See  a  petition  for  a  certiorari  by  a  garnishee,  37  111.  E.  91. 

The  statute  of  Illinois  provides  that  "  the  justice  of  the 
peace,  constables,  and  other  persons  concerned,  shall,  as  soon 
as  the  writ  of  certiorari  shall  be  served  on  such  officers,  stay 
all  further  proceedings  in  that  case  until  the  further  order  of 
the  court  issuing  the  writ."  ' 

Where  a  cause  is  taken  up  by  certiorari,  the  trial  is  to  be 
de  novo,  as  in  cases  of  appeal.^    The  justice  is  not  required 

•Starr  &  Curtis  1462;   Rev.  Stat  *  Gallimore  v.  Dazey,  12  111.   143; 

(1893)  911;  Eev.  Stat.  (1895)  966;  Gerdes  v.  Cliampion,  108  111.  137; 
Coram,  v.  People,  99  III.  587.  Deer  v.  Comm.,  109  111.  379. 


564  CERTIOKARI. 

to  make  any  formal  return  to  the  writ;  his  only  duty  is  to 
send  up  the  papers  and  proceedings;  and  if  the  writ  is  served 
and  returned,  and  its  mandate  is  not  obeyed,  an  attachment 
may  issue  against  the  justice.'  Where  the  papers  and  a  tran- 
script of  the  proceedings  are  filed  in  the  court,  the  issuing  of 
a  certiorari  to  the  justice  is  unnecessary .2 

The  dismissal  of  an  appeal,  or  a  certiorari^  is  equivalent  to  an 
affirmance  of  the  judgment,  so  as  to  entitle  the  party  to  claim 
a  forfeiture  of  the  bond,  and  to  have  his  action  thereon,* 

]Jy  the  statute,  if  the  judgment  of  the  justice  is  reversed,  in 
whole  or  in  part,  such  reversal  does  not  vitiate  any  sale  on 
execution,  effected  before  the  issuing  of  the  certiorari;  but  in 
such  cases  the  court  may  assess  the  damages  which  have 
accrued  in  consequence  of  such  sale,  and  "  cause  judgment  to 
be  entered  or  a  deduction  made  therefor,"  In  case  of  a  par- 
tial reversal  of  the  judgment,  the  costs  may  be  apportioned.* 

^Gallimore  v.  Dazey,  12  111.  143;  571;    Docm  v.  SibUtt,  61    111.  485; 

McMamis  v.  McDonough,  4t  Bradw.  Fans  v.  O'Connor,  6  Bradw.  593. 

180.  *i2  Starr  &  Curtis  1463;  Rev.  Stat. 

^  Stout    V.   Slattery,   12    111.    163;  (1893)    911;    Rev.   Stat.    (1895)    974; 

Gallimore  v.  Dazey,  12  111.  143.  Wickersham  v.  Hurd,  72  111.  464; 

3  McConnell  v.  Parsons,  2  Scam.  Beckmaii  v.  Kreamer,  43  111.  447. 


CHAPTER  XYIII. 

QUO  WARRANTO. 

Quo  warranto  is  the  name  of  a  writ  issued  in  the  name  of 
the  people  or  government,  against  any  person  or  corporation 
that  usurps  any  franchise  or  office,  commanding  the  sheriff  of 
the  county  to  summon  the  defendant  to  be  and  appear  before 
the  court  -from  whence  the  writ  issued,  at  a  time  and  place 
therein  named,  to  show  "  by  what  warrant "  he  claims  the 
franchise  or  office  mentioned  in  the  writ.' 

By  the  fiction  of  the  feudal  law,  the  king,  as  the  head  and 
visible  representative  of  the  community,  was  considered  not 
only  as  the  ultimate  proprietor  of  all  the  land  in  the  kingdom, 
but  the  fountain  from  whence  all  public  franchises  were  de- 
rived; and  if  any  individual  or  collective  body  of  men,  whether 
corporate  or  not,  without  legal  authority,  exercised  any  such 
franchise,  it  was  considered  as  an  usurpation  of  the  king's  pre- 
rogative; and  if  a  franchise  had  been  legally  granted,  but 
was  exercised  in  a  manner  inconsistent  with  the  express  or 
implied  condition  of  the  grant,  the  franchise  was  considered 
forfeited,  and  the  sovereign  might  resume  it.  This  writ  has 
become  obsolete,  having  given  way  to  informations  in  the 
nature  of  a  quo  warranto  at  the  common  law.^ 

Nature  of. — An  information  in  the  nature  of  a  qiio  warranto 
is  understood  to  be  in  form  a  criminal  proceeding,^  and  can  be 
resorted  to  only  in  cases  where  the  public,  in  theory  at  least, 
has   some   interest.*     It  does  not  lie   merely  as    to   private 

J2Bla.Com.  262,  263;2Bouv.L.  D.  People  v.  Shaic,  13  111.  58i;  Wight 

417;  Wallace  v.  Anderson,  5  Wheat.  v.  People,  15  111.  417;  People  v.  Ridg- 

291;  Commonu'ealth  v.  Lkarhom,  15  ley,  21  111.  65;  Chesshirev.  People,  116 

Mass.  125;  Ang.  &  Ames  on   Corp.,  111.  493. 

Sec.  731.  *  Dickson   v.   People,   17  111.   191; 

2  Ang.  &  Ames  on  Corp.,  Sec.  721;  People  Y.Ridgley,  21  111.  65;  People  v. 

2  Bouv.  L.  D.  417;  see  3  Bla.  Com,  Golden  Rule,  114  111.  34;  McGrathv. 

262,  263.  People,    100   111.  464;    see  People  v. 

^Donnelly  y.  Peoole,   11   111.   552  Boyd,  132  IW.  QO. 

(565) 


566  QUO    WARRANTO. 

rights.'  Though  a  criminal  proceeding  in  form,  yet  in  sub- 
stance it  is  but  a  civil  one.'     And  is  so  regarded  in  this  state.' 

Jurisdiction  of  circuit  courts. — By  the  constitution  (sec. 
12,  art.  6),  the  circuit  courts  are  vested  with  the  power,  among 
others,  to  hear  and  determine  informations  in  the  nature  of 
quo  warranto^  they  being  proceedings  at  law.  The  right  to  in- 
quire into  the  authority  by  which  any  person  assumes  to  exer- 
cise the  functions  of  a  public  office  or  franchise  belongs  to  the 
people,  as  a  part  of  the  sovereignty.* 

Practice. — The  usual  mode  of  m'sXxivXmg  quo  warranto  pro- 
ceedings is  for  the  state's  attorney  to  submit  a  motion,  based 
on  affidavits,  for  leave  to  file  an  information.  A  rule  nisi  is 
then  entered  requiring  the  defendant  to  show  cause  why  the 
information  should  not  be  filed.  The  respondent  may  then 
answer  the  rule  b}'-  counter  affidavits.^ 

When  leave  to  file  information  will  be  granted. — It  is  not 
granted  of  course,  but  depends  on  the  sound  discretion  of  the 
court  upon  the  circumstances  of  the  case.^ 

It  will  usually  be  granted  where  the  right,  or  the  facts  on 
which  the  right  depends,  is  disputed  and  doubtful; '  or  where 
the  right  turns  upon  a  point  of  new  or  doubtful  law;  ^  or  where 
there  is  no  other  remed3^* 

In  a  proceeding  by  quo  warranto^  the  issue  of  a  writ  does 
not  end  the  discretion  of  the  court.  Where  the  writ  has  been 
improvidently  issued  the  court  may  decline  to  proceed  or  to 
grant  the  relief  sought.'" 

^People   V.  Cooper,    139    111.461;  Richardson,  4  Cow.  103;   People  \. 

People  V.  Dr.  Com.,  31  111.  App.  219;  R.  R.  Co.,  54  111.  App.  348. 

People  V.  R.   R.    Co.,  54   111.  App.  ^  People  v.  ilarfe,  70111.  25;  People 

348.  V.   Callaglian,  83  lU.  128;  People  v. 

^Kingv.  Francis,  2  T.   R.  484;  3  R.  R.    Co.,    88    111.  537;    People  v. 

Kyd  on  Corp.   439;  Commomvealth  Golden  Rule,  114  111.  34;  Atfy  v.  R. 

V.  Commissioners,  1  Serg.  &  Rawle  R.  Co.,  112  111.  520;   People  v.  R.  R, 

385;  People  v.  R.  R.  Co.,  13  111.  66;  Co.,  54  111.  App.  348. 

Donnelly  v.  People,  11  111.   552;  Es-  '  Rex  v.  Latham,  3  Burr.  1485;   1 

minger  v.  People,  47  111.  384.  Bl.  Rep.  468. 

3  People  V.  Boyd,  132  111.  60;  People  »  Rex  v.  Carter,  Cowp.  58;  Rex  v. 

V.  Boyd,  30  111.  App.  608.  Goodwin.  Doug.  397;  People  v.  Rich- 

*  Snowball  v.  People,  147  111.  260.  ardson,  4  Cow.  102. 

£■  King  v.  Symons,  4T.  R.  221;  Peo-  » Cas.  K.  B.  225;  Bull  N.  P.  212. 

pie  V.  Tibbit!>.  4  Cow.  383;  People  v.  «»  People  \.  Hamilton,  24  111.  App. 


QUO   WARRANTO.  567 

When  leave  to  file  will  not  be  granted.— If  the  defendant 
can  show  that  his  right  has  already  been  determined  by  mcm- 
da.mus^  or  that  it  depends  on  the  right  of  those  who  voted  for 
him,  which  has  not  been  tried; '  or  that  the  person  upon  whose 
right  the  defendant's  title  depends  has  enjoyed  his  franchise 
so  long  that  the  court  would  not  permit  it  to  be  impeached  in 
this  mode  of  proceeding,  the  information  will  be  denied.^  So 
if  the  defendant's  right  has  been  acquiesced  in  for  a  length  of 
time.' 

So  the  information  will  not  be  granted  if  it  appears  that  the 
time  for  which  the  officer  was  elected  will  expire  before  the 
inquiry  can  have  any  effect.* 

In  England,  it  seems,  the  court  will  not  grant  an  informa- 
tion to  try  the  validity  of  an  election  to  the  office  of  church 
warden,  because  it  is  no  usurpation  of  the  crown." 

But  in  Pennsylvania  an  information  has  been  granted 
against  persons  exercising  the  office  of  trustees  of  a  church 
corporation,"  and  it  is  said  to  be  settled,  in  this  country,  that 
an  information  will  lie  against  any  one  who  intrudes  himself 
into  an  office  of  a  private  corporation.'' 

Limitations. — At  common  law  the  time  within  which  a 
corporate  office  might  be  impeached  by  a  quo  warranto  was 
indefinite;  it  varied  with  the  circumstances  of  each  particular 
case;  ^  and  it  was  for  some  time  thought  better  that  it  should 
be  unsettled.'  At  length,  however,  the  court  (the  kino-'s 
bench)  set  a  limit  to  its  discretionary  power,  and  confined  the 
time,  in  analogy  to  other  cases  of  limitations,  within  twenty 

609;  Com.  v.  Cheely,  56  Pa,  St.  270;  S.  &  R.  127;  see  Lawson  v.  Kolhen- 

Peoplev.  Drain.  Com.,  31   111.    App,  son,  61  111.  405;  People  \.  Moore,  IS 

219;  Peoplev.  R.  R.  Co.,  54  111.  App.  111.  132. 

348.  '  Ang.  &  Ames  on  Corp.,  sec.  736; 

'  2  Hawk.  P.  C,  chap.  26,  sec.  9.  People  v.  Moore,  73  111.  132;  Latcson 

2  Rex  V.  Stephens,   1    Burr.    433;  v.  Kolbenson,  61  111.  405. 

Rex  V.  Peacock,  4  Term  R.  684.  *  ^e^  v.  Poioell,  8  Mod.  165:  and 

3  Bac.  Abr.,  Information.  see  Rex  v.  Stax^ey,  1  T.  R.  1;  Rex  v. 

*  People  V.  Siveeting,  2  Johns.  184;  -Pi^"«'  8  Mod.  286,  cited;  and  Rex  v. 
Commonu-ealth  v.  Athcarn,  3  Mass.  Newling,  3  T.  R.  311;  Rex  v.  Bond, 
285;  see  Clark  v.  People,  15  111.  213.       2  T.  R.  767. 

f-  Rex  V.  Master,  4  Term  R.    381;  '  ^^  v.   Latluxm,   3  Burr.    1485, 

see  People  v.  De  MUl,  15  Mich.  164.         I486. 

*  Commonwealth    v.    Arrison,  15 


568  QUO   WARRANTO. 

years,'  and  at  length  to  six  years;  ^  and  the  last  period  was 
confirmed  by  parliament,  by  stat.  32,  Geo.  3,  58. 

In  the  absence  of  any  statutor}'  period  of  limitation,  it  is 
held  in  this  country  that  the  attorney-general  may  file  an  in- 
formation in  behalf  of  the  people  at  any  time;  and  that  the 
lapse  of  time  constitutes  no  bar  to  the  proceeding,  in  con- 
formity with  the  maxim,  nnUinn  jpeTnp'tLS  occurrit  regi? 

It  is  a  familiar  doctrine  that  the  state  is  not  embraced 
within  the  statute  of  limitations,  unless  specially  named,  and, 
by  analogy,  will  not  fall  within  the  doctrine  of  estoppel.* 

The  statute  applies,  however,  when  the  object  of  the  action 
is  to  enforce  private  rights  as  distinguished  from  public 
rio-hts,"  and  the  period  of  limitation  has  been  held  to  be  five 
years.** 

The  statute  of  limitation  may  be  interposed  by  demurrer 
when  the  declaration  discloses  the  proper  facts  to  raise  the 
question.^ 

When  it  lies. — By  section  1  of  the  "  Quo  "Warranto"  act,  it 
is  provided 

"  That  in  case  any  person  shall  usurp,  intrude  into,  or  unlaw- 
fully hold  or  execute  any  office  or  franchise,  or  any  office  in 
any  corporation  created  by  authority  of  this  state  (or  any  per- 
son shall  hold  or  claim  to  hold  or  exercise  any  privilege,  ex- 
emption or  license,  which  has  been  impro]:)erly  or  without 
warrant  of  law  issued  or  granted  by  any  officer,  board,  com- 
missioner, court,  or  other  person  or  persons  authorized  or  em- 
powered by  law  to  grant  or  issue  such  privilege,  exemption  or 
license),  or  any  public  officer  shall  have  done  or  suffered  any  act 

'  Winchester  Causes,  4  Burr.  1963,  *  Catlejtt   v.   People.    151   III.    16; 

2023,  2121,  2523;  People  v.  Richard-  People  v.  Broivn,  67  111.  435;  People 

son,  4  Cow.  103;  see  State  v.  3Iiaini  v.   Gilbert,  18  Johns.  227;  Bank  v. 

Co.,  11  Ohio  126.  Brown,  1  Scam.  106. 

2  Rex    V.    Dicken,    4  T.    R.    283;  *  People  v.    Boyd,  132  111.   60;  S. 

King  v.  Peacock,  4  T.  R.  684;  R.  G.  C,  30  111.  App.  608. 

Hill.  T.  1791.  ®  Peojile  v.  Boyd.  132  111.  60. 

^  CatMt    V.    People,  151   111.   16;  "i  Henry  v.  Co.  Drain.  Co.,  52    III. 

High's    Ext.   Leg.   Rem.,    Sec.  621;  454;  Ilett    v.    Collins.    103    111.    74; 

see    People    v.   R.  R.   Co.,    54  Ul.  Bank  v.  Jenkins,  104  III.   143;  Bdl 

App.  348;  McPhail  v.  People,  160  v.  Johnson,  111  111.  374, 
lU.  77. 


QUO   WAKKANTO.  569 

which,  by  the  provisions  of  law,  works  a  forfeiture  of  his  office; 
or  any  association  or  number  of  persons  shall  act  within  this 
state  as  a  corporation,  without  being  legally  incorporated;  or 
any  corporation  does  or  omits  any  act  which  amounts  to  a  sur- 
render or  forfeiture  of  its  rights  and  privileges  as  a  corpora- 
tion, or  exercises  powers  not  conferred  by  law;  or  if  any  rail- 
road company  doing  business  in  this  state  shall  charge  an 
extortionate  rate  for  the  transportation  of  any  freight  or  pas- 
senger, or  shall  make  any  unjust  discrimination  in  the  rate  of 
freight  or  passenger  tariff  over  or  upon  its  railroad,  the  attor- 
ney-general or  state's  attorney  of  the  proper  county,  either  of 
his  own  accord  or  at  the  instance  of  any  individual  relator, 
may  present  a  petition  to  any  court  of  record  of  competent 
jurisdiction,  or  any  judge  thereof  in  vacation,  for  leave  to  file 
an  information  in  the  nature  of  a  quo  warranto  in  the  name  of 
the  people  of  the  State  of  Illinois,  and  if  such  court  or  judge 
shall  be  satisfied  that  there  is  probable  ground  for  the  pro- 
ceedings, the  court  or  judge  may  grant  the  petition  and  order 
the  information  to  be  filed  and  process  to  issue.  When  it  ap- 
pears to  the  court  or  judge  that  the  several  rights  of  divers 
parties  to  the  same  office  or  franchise,  privilege,  exemption  or 
license,  may  properly  be  determined  on  one  information, 
the  court  or  judge  may  give  leave  to  join  all  of  such  persons 
in  the  same  information  in  order  to  try  their  respective  rights 
to  such  office,  franchise,  privilege,  exemption  or  license."  * 

Under  this  section,  as  amended  in  1881,  the  suit  lies  by  the 
attorney-general  against  licensee  to  test  the  validity  of  a 
license  to  keep  a  dram-shop.'' 

One  of  the  objects  of  an  information  of  this  nature  is  to  call 
in  question  the  title  to  an  office  or  franchise  claimed  and  ex- 
ercised by  the  defendant,  because  of  some  alleged  defect  in  such 
title;  as,  for  instance,  that  at  the  time  of  the  election  of  the 
defendant  to  an  office,  he  was  disqualified  to  be  elected;  or 
that  the  election  itself  was  void  or  irregular;  or  that  the  de- 
fendant was  not  duly  elected,  or  not  duly  appointed;  or  that  he 
has  not  been  duly  sworn  in,  or  has  been  otherwise  unlawfully 

1  Rev.  Stat.  (1893),  1087;  Rev.  Stat.  ^  Sicarth  v.   People,   109  III.  621; 

(1895),  1171;  2  Starr  &  Curtis,   1871.      Handy  v.  People,  29  IlL  App.  99. 


570  QUO  WARRANTO. 

admitted;  or  that  lie  has  since  become  disqualified,  and  yet 
presumes  to  act.' 

A  defective  title  is  understood  to  be,  and  is,  in  contemplation 
of  law,  the  same  as  no  title  whatever;  and  a  person  exercising 
an  office  or  franchise  of  a  public  nature  is  considered  as  a 
mere  usurper  unless  he  has  a  good  and  complete  title  in  every 
respect.^ 

The  question  as  to  whether  a  person  who  claims  the  right 
and  exercises  the  powers  of  a  public  office,  has  been  lawfully 
elected,  may  be  tested  by  quo  warranto  and  the  incumbent 
ousted  if  he  has  usurped  the  same.'  Where  a  person  is  in  office 
by  color  of  right,  the  remedy  is  not  by  mandamus  to  admit 
another  having  lawful  claim,  but  by  information  in  the  nature 
of  a  quo  warranto!' 

An  information  lies,  under  our  statute,  not  only  against  a 
person  who  has  usurped  or  intruded  into  an  office,  but  also 
against  a  person  who  unlawfully  holds  an  office  to  which  he 
was  at  first  entitled.  If  an  officer  rightf  ull}'-  elected  and  quali- 
fied exercises  the  functions  of  his  office  after  its  termination, 
by  subsequent  occurrences,  this  proceeding  is  the  appropriate 
remedy  to  oust  him.^ 

An  information  will  lie  against  a  corporation  or  an  indi- 
vidual,® and  against  officers  appointed  by  the  executive,  as  well 
as  those  holding  corporate  offices  or  franchises.'  The  legality 
of  the  organization  of  a  corporation  can  be  attacked  and  judi- 
cially examined  only  in  a  direct  proceeding  by  quo  warranto.^ 

^People  V.    Ridgley,    21    111.    65;  *  People  v.  Forquer,    Breese  104; 

People  V.    Whitcomb,    55    111.    172;  People  v.    FletcJier,    2    Scam.    487; 

People  V.  Waite,  70  111.  25;  Esmin-  People  v.  Matteson,  17  111.  167;    see 

gerv.  People,  47  111.384;  People  x.  People   v.    Mobley,    1    Scam.    215; 

Beach,  77  111.  52;  Hinze  v.  People,  People    v.    Whitcomb,    55  111.    172; 

92  111.  406;    McPhail  v.  People,  56  Rafferty  v.  McGowan,  136  111.  620. 
111.  App.  289;  Greenwood  v.  Murphy,  ^  Burgess  v.  Davis,  138  III.  578. 

131  111.  604.  «Cas.  K.  B.  225;  Bull  N.   P.  212; 

"^People  V.  Ridgley,  21  111.  65;  see  see  Coinmonw.  v.  Ins.  Co.,  5  Mass. 

Clark  V.  People,  15  111.  213;  People  230. 

V.  Ins.  Co.,  15  Johns.  358;  Simons  v.  ''  Commonwealth    v.    Fowler,    10 

People,  18  Bradw.  588,  Mass.  290;  Renttrick  v.  Hall,  84  111. 

*  Snowball  v.  People,  43  111.  App,  162;  Lawson  v.  Kolbenson,  61  III.  405; 

241;  Snoivball  v.  People,  147  111.  260;  Sullivan  v.  People,  18  Bradw.  627. 
Rafferty  V.  McGowan,  136  111.  620;         ^  Lees  v.  Dr.  Com.  125  111,  47. 
Burgess  v.  Davis,  138  111.  578, 


QUO   WARRANTO.  571 

Where  an  incorporated  company  carries  on  banking  operations, 
without  authority  from  the  legislature,  this  information  lies,' 
and  it  is  the  proper  mode  of  testing  the  question  of  the  for- 
feiture of  a  charter.* 

The  right  to  preside  over  the  meetings  of  a  city  council  is  a 
franchise  given  by  law;  and  if  invaded,  the  remedy  is  by  infor- 
mation in  the  nature  of  a  quo  warranto.^  Where  a  part  is 
attempted  to  be  taken  from  a  school  district  and  added  to 
another,  the  legality  of  the  change  can  be  tested  by  quo 
warranto. *^ 

Whether  or  not  a  railroad  company  is  a  'bona  fide  corpora- 
tion, within  the  meaning  of  the  law  and  spirit  of  the  law,  can 
only  be  determined  by  quo  warranto.^ 

A  municipal  body  which  has  exceeded  its  jurisdiction  and 
has  proceeded  illegally,  ma}^  be  proceeded  against  either  by 
quo  warranto^  scire  facias,  or  the  common  law  writ  of  certi- 
orari.* 

Where  the  legality  of  the  formation  and  organization  of  a 
drainage  district,  or  the  validity  of  the  annexation  of  land  to  , 
a  drainage  district,  under  the  drainage  act  of  1SS5,  is  ques- 
tioned, the  proper  remedy  is  a  quo  warranto  against  the  drain- 
age commissioners/ 

Quo  warranto  lies  against  one  who  wrongful!}^  assumes  to 
act  as  a  drainage  commissioner,* 

When  a  corporate  body  assumes  powers  which,  from  defect 
in  its  organization,  it  can  not  legally  exercise,  quo  warranto  is 
the  proper  remedy.® 
It  is  the  proper  proceeding  to  test  the  eligibility  of  a  per- 

^  People  V.  Ins.  Co.,  15  Johns.  358.  Trumbo  v.  People,  75  111.  561;  Ren- 

^  Baker  V.  Adni'r,   32  111.79;    Wil-  wick  \.  Hall,   84  111.162;   People  v. 

liamsv.  Bank,  1  Gilm.  667;  People  Bd.  of  Education,  101  111.  308. 

V.  R.  R.  Co.,  15  Wend.   113;   People  ^ Brown  v.  Ry.  Co.,  125  111.  600. 

V.  Bristol,   23  Wend.   222;  King  v.  «  Comm.  v.    Griffins,   134  111.  330; 

Pasmore,  3  T.  R.  132;  see   Common-  see  People  v.  City,  61  III.  App.  86. 

wealthy.  Turnpike   Co.,  6  B.  Mon.  '^ Bodriian  v.  Drain.  Dist.,  Id2  III. 

(Ky.)  397;  People  v.  Bank,  6  Cowen  439;  Evans  v.   Leicis,   121    111.    478; 

217;  H.Ry.Co.v.  City,  47  111.  App.  Keigwin  v.  Dr.  Com.,   115  111.347; 

388.  People  v.  Jones,  137  IlL  35. 

^Cochran  v.  McLeary,  22  Iowa 755  *  Smith  v.  People,  140  111.  355;  S. 

see  People  v.  Bird.  20  Bradw.  568.  C,  39  111.  App.  238. 

^People  V.    Trustees,   87    lU.     41;  *  Baker  v.  Backus,  32  111  10. 


572  QUO  WARRANTO. 

son  to  hold  the  office  of  circuit  judge; '  or  of  members  of  city- 
council;  "^  or  of  wharf  master;'  or  of  city  marshal;  *  or  of  school 
trustees.^ 

It  is  the  proper  remedy  to  test  the  legality  of  the  organiza- 
tion of  a  school  district;  *  or  of  a  village.' 

It  lies  against  a  person  holding  and  executing  an  office 
created  by  unconstitutional  law,' 

It  is  a  proper  remedy  if  a  board  of  education  undertakes  to 
exercise  powers  it  does  not  possess." 

It  is  not  a  proper  proceeding  to  test  the  validity  of  an  act 
extending  the  territorial  limits  of  a  city;'"  nor  to  test  the 
validity  of  a  contract  entered  into  b}"  a  municipal  corpora- 
tion; "  nor  to  contest  the  election  for  the  adoption  of  a  city 
charter;'^  nor  to  test  the  legality  of  the  official  action  of 
public  or  corporate  officers.'^ 

The  extraordinary  remedy  by  qtco  warranto  is  not  grantable 
where  the  party  aggrieved  can  obtain  full  and  adequate  relief 
in  the  usual  course  of  proceeding  at  law,  or  where  the  griev- 
ance may  be  redressed  by  bill  in  equity.'* 

Parties. — If  the  information  is  for  the  abusing  of  a  fran- 
chise by  a  corporation,  it  sliould  be  against  the  corporation;  if 
for  usurping  to  be  a  corporation,  it  should  be  against  the  par- 
ticular persons.'*    It  will  not  lie  on  the  relation  of  an  individ- 

'  Smith  V.  People,  44  111.  16.  ^  People  v.  Board  of  Educaticm, 

2  Peojile  V.  Bird,  20  111.  App.  568.  101  111.  308. 

3  Ensminger  v.  People,  47  111.  384.  i"  People  v.  miitcomh,  55  111.  172. 
*  People  V.  Canty,  55  111,  33.  "  People  v.  City,  61  111,  App.  86. 

5  See  Simons  v.  People,  18  111.  App.  '^  Chicago  v.  People.  80  111,  496, 

588;  Peoi^/e  V,  l/oore,  73  111.  132;  see  »3  High  Ext.  Leg,  Rem.,  2d   Ed,, 

Lau'son  v,  Kolbenson,  61  111,  405,  Sec,    618;     People  v.   Whitconib,   55 

«  Renwick     v.  Hall,  84  111.   162;  111,  172;  People  v.  Wyatt,  34  111.  App. 

Ward  V.  Farivell,  97  111,  593;  Trumbo  454. 

V,  People,  75  111.  561;  People  v.  New-  '^High  Ext.  Leg.  Rem,,  Sec,  617; 

beri-y,8'7   111.41;  Sch.   Dir.   v.  Sch.  People  v.  WTiitcomb,  5ol\\.  172;  Peo- 

Dir.,  135  111.  464;  People  v.  Bicker,  pie  v.  Springfield,  61   111.  App.  86. 

142  111.  650;   Rayfi£ld  v.  People,  144  '^2  Roll.  Rep.  113,  115;  see  People 

111.332.  V,  R.    Co.,   88 '111,     537;  People  v. 

'  Kamp  V.  People,  141  III.  9;    Poor  Spg.  Valley,  129   III  169;    People  v. 

V.  People,  142  111,  309,  a  Hair,  128  111.  26. 

«  Hinze  v.  People,  92  III.  406. 


QUO   WARRANTO.  573 

ual,  against  a  copporation  as  a  body.  This  should  always  be 
by  the  attorney-general.' 

If  on  the  relation  of  a  private  person,  it  should  be  against 
the  several  individuals,  to  show  by  what  authority  they  claim 
their  respective  franchises.*  If  the  information  is  at  common 
law,  there  is  no  relator.^ 

Motion  for  leave  to  file  information.— The  first  step 
towards  the  filing  of  an  information,  at  the  relation  of  any 
person,  is  a  motion  by  the  attorney-general,  or  state's  at- 
torney, based  on  an  afiidavit  or  alfidavits,  for  leave  to  file  such 
information.* 

If  the  applicant  makes  out  a  case  prima  facie,  the  usual 
course  is  for  the  court  to  grant  a  rule  nisi  on  the  defendant, 
to  show  cause  why  the  information  should  not  be  filed;  and 
on  the  day  appointed,  or  at  such  time  thereafter  as  the  court 
may  fix,  he  may  show  cause  against  the  rule,  and  exhibit 
counter  affidavits.^ 

This  rule  can  not  be  applied,  however,  when  the  application 
is  made  to  a  judge  in  vacation,  as  a  judge  can  exercise  no 
judicial  functions  in  vacation,  unless  expressly  authorized  to 
do  so." 

For  the  requisites  of  the  affidavits  on  both  sides,  and  ob- 
servations thereon,  see  note.'' 

Unless  the  cause  shown  is  such  as  to  put  the  matter  beyond 
dispute,  the  court  will  make  the  rule  absolute  for  the  infor- 
mation, in  order  that  the  question  of  the  right  may  be  prop- 
erly determined.* 

Form  of  information. — The  outline  of  the  English  form  is 
given  in  4  Coav.  K.  106,  from  2  Kyd  on  Corp.  403;  and  a 
variety  of  English  precedents  will  be  found  in  6  Wentworth's 

'  Chicago  v.    People,   80  III.  496;  '  See  People  v.   Shrnv,  14  111.  476; 

People  V.  Board,  101  111.  308;  Sicarth  People  v.  R.  Co.,  88  111.  537;  People 

V.   People,   109   111.  621;    People   v.  v.  McFall,  124  111.  642. 

Golden  Rule,  114  111,  34;  Chesshire  v.  « People  v.  McFall,  124  111.  642. 

People,  116  111.  493.  '  Peoiile  v.  Richardson,  4  Cow.  R. 

^Rex  V.  Carmarthen,  2  Butt.  869.  105-106,  and  Ang.  &  Ames  on  Corp. 

»Bull.  N.  P.  211;  see  Chesshire  v.  Sees.  748,  749. 

People.  116  111.  493.  sbuII.  N.  P.  210;  People  v.  Rich- 

*  See  People  v.Mohley.\Scam.21^;  ardso».  4  Cow.  106;    Att'y   Gen.   v. 

People  V.  Golden  Rule,  114  111.  34.  R.  R.  Co.,  112  111.  520. 


574  QUO    WAKRANTO. 

Pleadings,  28  to  234.  In  Illinois,  an  information  must  be  "  in 
the  name  and  by  the  authority  of  the  People  of  the  State  of 
Illinois,"  and  conclude  "  against  the  peace  and  dignity  of  the 
same,"  '  if  it  does  not,  advantage  can  be  taken  either  in  arrest 
or  on  error."  And  it  should  be  drawn  with  the  same  certainty 
as  an  indictment  or  declaration.* 

Summons. — "  Sec.  2.  On  the  filing  of  such  information 
the  clerk  of  the  court"  shall  issue  a  summons  in  like  form  as 
any  other  summons,  commanding  the  defendant  to  appear  at 
the  return  term  thereof  to  answer  the  relator  in  an  informa- 
tion in  the  nature  of  a  quo  warranto.  If  the  information  is 
filed  in  vacation,  the  summons  shall  be  made  returnable  on  the 
first  day  of  the  next  succeeding  term;  if  in  term  time,  it 
may  be  made  returnable  on  any  day  of  the  same  term,  not 
less  than  five  days  after  the  date  of  the  w^rit,  as  shall  be  di- 
rected by  the  court." 

Service  of  summons. — "  Sec.  3.  The  summons  may  be 
served  in  the  same  manner  as  other  summons  in  suits  at  law; 
but  if  any  defendant  resides,  or  is  out  of  the  state,  he  may  be 
served  with  a  copy  of  the  information,  in  the  same  manner, 
and  with  like  effect,  and  the  service  may  be  proved  in  the  same 
way  as  provided  in  cases  of  bills  in  chancery."  * 

Defendant  required  to  plead. — "  Sec.  4.  Every  defendant 
who  shall  be  summoned,  or  served  with  a  copy  of  the  infor- 
mation, as  required  in  this  act,  shall  be  held  to  demur  or 
plead  to  the  information  on  the  return  day  of  the  summons, 
or  when  served  with  a  copy  of  the  information  at  the  expira- 
tion of  the  time  required  to  be  given,  or  within  such  further 
time  as  may  be  granted  by  the  court,  or  in  default  thereof, 
judgment  may  be  taken,  nU  dicitP 

The  defendant  should  either  disclaim  or  justify;  and  if  h« 
justifies  he  should  set  out  his  title  specially.     He  must  exhibit 

»  People  V.  R.  R.   Co.,   13  111.  67;  Lavalle  v.  People,  68  111.  253;  Minch 

Wright  V.  People,  15  111.  417;    Hay  v.  People,  6  Bradw.  127;    Lecroix  v. 

V.  People,  59   111.    94;    Chesshire   v.  People,  6  Bradw.  129. 
People,  116  111.  493.  *  Lavalle  v.  People,  68  111.  253;  see 

2  Hay  V.  Peo2)le,  59  111.  94.  People  v.  Golden  Rule,  114  111.  34. 

^People  V.   Higgins,  15  111.    110; 


QUO   WARRANTO.  575 

good  authority  or  the  people  will  be  entitled  to  a  judgment 
of  ouster.' 

Burden  of  proof. — Where  the  matters  alleged  in  an  infor- 
mation against  a  corporation,  or  the  relator's  replication,  as 
ground  for  the  forfeiture  of  its  character,  are  denied  by  the 
rejoinder,  the  burden  will  rest  upon  the  relator  to  prove,  by  a 
preponderance  of  the  evidence,  that  the  defendant  has  com- 
mitted or  omitted  acts  which  amount  to  a  surrender  or  for- 
feiture of  its  rights  and  privileges  as  a  corporation." 

Time  to  plead,  etc.—"  Sec.  5.  The  court  in  which  any 
information  as  aforesaid,  is  filed,  may  allow  the  relator  or  de- 
fendant such  convenient  time  to  plead,  reply  or  demur,  as  it 
shall  deem  just  and  reasonable." 

Judgment. — "  Sec.  6.  In  case  any  person  or  corporation 
against  whom  any  such  information  is  filed,  is  adjudged  guiltv 
as  charged  in  the  information,  the  court  may  give  judo-ment 
of  ouster  against  such  person  or  corporation  from  the  olRce  or 
franchise  and  fine  such  person  or  corporation  for  usurping,  in- 
truding into,  or  unlawfully  holding  and  executing  such  office 
or  franchise,  and  also  give  judgment  in  favor  of  the  relator  for 
the  costs  of  the  prosecution  :  Provided,  that  instead  of  judo-- 
ment  of  ouster  from  a  franchise  for  an  abuse  thereof,  unless  the 
court  is  of  the  opinion  that  the  public  good  demands  such 
judgment,  the  court  may  fine  the  person  or  corporation  found 
guilty  in  any  sum  not  exceeding  twenty-five  thousand  dollars 
($25,000)  for  each  offense.  AVhenever  judgment  is  given  for 
any  defendant  in  such  information,  the  person  or  corporation 
to  whom  judgment  is  given  shall  recover  costs  against  the 
relator." 

The  judgment  upon  information,  charging  defendant  with 
usurping,  unlawfully  entering  and  exercising  powers  of  an 
office,  etc.,  if  against  the  defendant,  is  that  he  is  guilty  as 
charged  in  information  and  of  ouster.^ 

The  judgment  of  ouster  against  an  alleged  municipal  corpo- 

•  Clark  V.  People,  15  III.  21d;  III.  « Ibid.;   K  &  S.  Stock  Co.  v.  Peo- 

M.  R.    Co.   V.  Peo2^le,   84  111.    426;  pie,  147  111.  234. 

Holden  V.  People,  90  III. 'iU;  Simona  ^Simons  v.  People,   18   III.  App. 

V.  Peojjle,  18  111.  App.  588:    Carrico  588. 
V.  People,  123  111.  198, 


576  QUO   WARRANTO. 

ration  has  the  effect  to  dissolve  it,  whether  it  existed  de  jure 
or  de  facto,  and  to  completely  extinguish  it.' 

A  judgment  of  ouster  is  conclusive  upon  the  defendants  in 
the  proceeding." 

Appeal  and  writ  of  error. — "  Sec.  7.  Appeals  and  writs  of 
error  may  be  taken  and  prosecuted  in  the  same  manner,  and 
upon  the  same  terms,  and  with  like  effect  as  in  other  civil 
cases." 

Process. — Section  10  of  the  Practice  Act  of  1S72  is  as  fol- 
lows : 

*'It  shall  not  be  necessary  hereafter,  in  any  action  of  man- 
damus or  quo  warranto,  to  set  out  the  cause  of  action  in  the 
writ,  but  it  shall  be  sufficient  to  summon  the  defendant  in  a 
summons  in  the  usual  form,  commanding  the  defendant  to 
appear  and  answer  the  plaintiff  in  an  action  of  mandamus  or 
quo  xoarranto,  as  the  case  may  be,  and  the  issues  shall  be  made 
up  by  answering,  pleading  or  demurring  to  the  petition  as  in 
other  cases." ' 

JNTo.  oOG.     Information  by  the  attorvey-geveral,  ex  officio,  against  a  corpo- 
ration, for  exercising  franchises  without  authority.*^ 

In  the Circuit  Court. 

Term,  18—. 

State  of  Illinois,  ) 

County  of  ,  i^  set.  A.  B.,  attorney-general  of  the  said  State  of  Illi- 
nois, who  sues  for  the  People  of  the  said  state  in  this  behalf,  comes  into  the 
court  here,  on  this  day,  and  for  the  said  People,  and  in  the  name  and  by  the 
authority  thereof,  gives  the  court  here  to  understand  and  be  informed,  that 

the company,  for  the  space  of months  last  past,  and  more,  in 

the  county  of  aforesaid,    has  used,  and  still  does  use,  without  any 

warrant,  charter  or  grant,  the  following  liberties,  privileges  and  franchises, 
to  wit,  [that  of  becoming  proprietors  of  a  bank  or  fund  for  the  purpose  of 
issuing  notes,  receiving  deposits,  making  discounts,  and  transacting  other 
business  which  incorporated  banks  may  and  do  transact  by  virtue  of  their 
respective  acts  of  incorporation,  and  also  that  of  actually  issuing  notes,  re- 
ceiving deposits,  making  discounts,  and  carrying  on  banking  operations 
and  other  moneyed  transactions  which  are  usually  performed  by  mcorpo- 
rated  banks,  and  which  they  alone  have  a  right  to  do;]  all  which  said  lib- 
erties, privileges  and  franchises  the  said company,  during  all  the 

time  aforesaid,  in  the  county  aforesaid,  upon  the  said  People  has  usurped, 

'  Dodge  v.  People,  113  111.  491.  ^  2  starr  &  Curtis  1780;  Rev.  Stat, 

i  Waterman  v.  R.  R.  Co.,  139  111.       (1893)  1088;  Rev.  Stat.  (1895)  1172. 
(1.^8.  *  Peoples.  Ins.  Co.,  15  Johns.  36. 


QUO    WARRANTO.  577 

and  still  does  usurp;  to  the  damage  and  prejudice  of  the  said  People,  and 
against  the  peace  and  dignity  of  the  same.  Whereupon  the  said  attorney- 
general,  for  the  said  Feople,  and  in  the  name  and  by  the  authority  thereof, 
prays  the  consideration  of  the  court  here  in  the  premises,  and  due  process 

of  law  in  this  behalf,  to  make  the  said company  answer  to  the 

said  People  by  what  warrant  it  claims  to  have,  use  and  enjoy  the  liberties, 
privileges  and  franchises  aforesaid. 

A.  B.,  Attorney-General. 

The  information  need  not  show  any  title  in  the  People  to 
the  franchise,  but  it  lies  with  the  defendant  to  show  a  warrant 
for  exercising  such  franchise;  and  if  the  title  set  up  is  incom- 
plete, the  People  is  entitled  to  judgment.'  See  the  cases  re- 
ported in  6  Cow.  K.  196,  211,  217.  In  these  cases,  the  infor- 
mations charged  the  corporations  generally  with  usurpations; 
and  on  the  defendants  setting  out  their  charters,  and  justify- 
ing under  them,  the  attorney -general  replied  the  causes  of  for- 
feiture specially;  and  this  was  held  to  be  no  departure. 

No.  307.    Information  at  the  instance  of  a  relator,  under  the  statute.'^ 

{Title  of  court,  etc.,  as  in  last  precedent.)    A.  B.,  state's  attorney  for  the 

said  county  of  ,  who  sues  for  the  People  of  the  said  State  of  Illinois  in 

this  behalf,  comes  into  the  court  here,  on  tliis  day,  and  for  the  said  People, 
and  in  the  name  and  by  the  authority  thereof,  at  the  relation  of  E.  F. ,  (ac- 
cording to  the  form  of  the  statute  in  such  case  made  and  provided,)  gives 
the  court  here  to  understand  and  be  informed,  that  C.  D.,  for  the  space  of 

now  last  past,  and  more,  in  the  county  aforesaid,  unlawfully  has 

held  and  executed,  and  still  does  hold  and  execute,  without  any  warrant  or 
right  whatsoever,  the  office  {or  "  franchise,"  or  "  office  and  franchise"')  of 

;  which  said  office  {or  "  franchise,"  etc.,)  the  said  C.  D.,  during  all 

the  time  aforesaid,  in  the  county  aforesaid,  upon  the  said  People  has 
usurped,  and  still  does  usui-p;  to  the  damage  and  prejudice  of  the  said  Peo- 
ple, and  against  the  peace  and  dignity  of  the  same.  (*)  Whereupon  the 
said  state's  attorney,  for  the  said  People,  and  in  the  name  and  by  the  au- 
thority thereof,  at  the  relation  of  the  said  E.  F. ,  prays  the  consideration  of 
the  court  here  in  the  premises,  and  due  process  of  law  against  the  said  C.  D., 
to  make  him  answer  to  the  said  People  by  what  warrant  he  claims  to  hold 
and  execute  the  office  {or  "  franchise,"  etc., )  aforesaid. 

A.  B.,  State's  Attorney. 

^People  V.  Ins.  Co.,  15  Johns.  363;  23  gtan-  &  Curtis,  1871;  Rev.  Stat. 

People  V.  Ridgley,  21  111.  65;  Simons      (1893)  1087;  Rev.  Stat.  (1895)  1171. 
V.  People,  18  Bradw.  588. 

37 


S^TB  QUO   WARRANTO. 

If  deemed  expedient,  another  count,  or  counts,  may  be  in- 
serted, at  the  asterisk  in  the  above  form. 

The  information  should  describe  the  ofRce  or  franchise 
which  the  defendant  is  alleged  to  hold  and  execute,  so  that  it 
may  be  seen  whether  the  case  is  within  the  statute  or  not.' 

The  appearance  of  the  defendant  to  a  rule  to  show  cause, 
etc.,  is  not  appearance  to  the  information;  and  therefore,  on 
filing  the  information,  the  prosecutor  is  not  entitled  to  a  rule 
to  plead,  but  there  must  be  a  service  of  process,  or  an  appear- 
ance. The  rule  to  show  cause  is  for  the  purpose  of  obtaining 
leave  to  institute  the  proceeding,  but  it  is  commenced  by  the, 
information." 

It  is  said  that  "  in  this  country  it  seems  to  be  not  an  unu- 
sual practice  for  the  information,  whether  it  be  for  an  intrusion 
into  or  usurpation  of  an  office,  or  for  an  assumption  or  con- 
tinued exercise  of  corporate  powers  without  right,  to  set  forth 
specially  the  right  of  the  relator  who  claims  the  office,  as  well 
as  the  usurpation  of  the  defendant.^ 

Where  an  information  is  filed  to  test  the  question  of  an  in- 
trusion into  or  usurpation  of  an  office,  it  is  sufficient  to  allege, 
o-enerally,  that  the  defendant  is  in  possession  of  the  office  with- 
out lawful  authority. 

The  rules  of  pleading  do  not  require  that  the  pleader  shall 
anticipate  that  the  defense  will  justify  under  an  election,  and 
show  in  advance  the  invalidity  of  such  election.  If  the  election 
is  pleaded,  its  invalidity  is  a  matter  to  be  shown  by  replica- 
tion.* 

Amendments. — The  information  and  proceedings  thereon 
are  amendable  in  the  discretion  of  the  court,  both  under  the 
common  law  and  the  statute." 

An  amendment  is  properly  refused  where  the  same  is  con- 
trary to  and  inconsistent  with  the  terms  of  the  information.* 

T' People  X.  Ridgley,  31  111.  65;  La-  *Ibid.;  People  v.  Cooper,  139  111. 

valle  V.  Peai?le,  68  111.  253.  461 


'■*  Ang.  (fe  Ames  on  Corp.,  Sec.  751 
Commonw.  v.  Sprenger,  5  Binn.  358 
Hambleton  v.    People,  44  111.    458 


^Hinze  v.  People,  93  HI.  406; 
Handy  v.  People,  39  111.  App.  99; 
Starr  &  Curtis'  An.  Stat.  265. 


see  Rev.  Stat.  (1893),  1088.  ^People  v.  Spring  Valley,  129  111. 

»  Ang.  &  Ames  on  Coi-p.,  Sec.  756.       169. 


QUO    WARRANTO.  579 

See  the  substance  of  an  information  against  certain  persons 
exercising  the  office  of  bridge  commissioners,  14  111,  476. 

DEFENSES. 

For  pleas  in  abatement,  see  Defenses  to  an  Action,  ante. 

The  pleadings  in  q^w  warranto  proceedings  should  conform 
as  far  as  possible  to  the  general  principles  and  rules  which 
govern  in  civil  actions.' 

Pleas  to  the  information. — The  defendant  must  either 
justify  or  disclaim.  If  he  justifies,  he  must  set  out  his  title 
fully  and  particularly,  showing  by  what  right  he  uses  or 
holds  the  franchise  or  office;  and  general  allegations  are  in- 
sufficient.' 

Disclaimer  and  justification  are  repugnant  and  intionsistent 
in  this  proceeding,  and  a  plea  attempting  to  join  them  is  sub- 
ject to  demurrer.^ 

Not  guilty,  and  non  usurpavit,  are  not  good  pleas,  for  they 
do  not  answer  to  the  nature  of  the  charge,  which  is  to  show 
by  what  authority  the  defendant  uses  the  franchise,  etc." 

The  sufficiency  of  the  information,  in  point  of  substance,  to 
sustain  a  judgment,  is  reviewable  on  error,  whether  previously 
challenged  by  demurrer  or  not,* 

The  People,  in  this  proceeding,  is  not  required  to  show  any- 
thing, at  least  in  the  first  instance,  but  the  entire  burden  is  on 
the  defendant;  and  (unless  he  disclaims)  he  must  show  by  his 
plea,  and  prove  that  he  has  a  valid  title  to  the  office  or  fran- 
chise. He  must  set  out  by  what  warrant  he  exercises  or  uses 
such  office  or  franchise,  and  must  show  good  right  thereto  or 
the  People  will  be  entitled  to  judgment  of  ouster." 

A  party  exercising  an  office  or  franchise  of  a  public  nature 
is  considered  as  a  mere  usurper,  unless  he  has  a  good  and  com- 

'D.  (fc    C,  F.  Co.   V.  People,  156  *  People   v.   Richardson,    4  Cow. 

111.  448.                      •  U8;  Crook  V.  Jayne,10Q  III  237. 

^  Clark  V,   Peop>le,  15  111.  213;  Ry.  ^  D.  <&  C.  F.  Co.  v.  People,  156111. 

Co.  V.  People,   84  111.   426;  Gunter-  448. 

man  v.  People,  138  111.  518;  Holden  « People  v.  Ridgley,  21  111.  65;  Pea- 

V.  People,  90  111.  434;  D.  &  C.  F.  Co.  pie  v.  Ins.  Co.,  15  Johns.  858;  Holden 

V.  People,  156  111.  448.  v  Peoi)le,  90  111.  434;  Ounternian  v. 

»A  cfc   C.  F.  Co.  V.  People,   156  Peoi^le,  138111.  518;  Carrico  v.  Peo- 

111.  448.  pie,  123  111.  198. 


580  QUO   WARRANTO. 

plete  title  in  every  respect.  A  mere  equitable  title  will  not 
suffice.' 

No.  SOS,    Plea  by  a  corporation,  to  an  information  by  the  attoimey-general. 

In  the Cirduit  Cburt. 

Term,  18—. 

^fg  I  Information  in  nature  of  quo  tcarranfo. 

The  People,  etc.  )      And  now  on  this  day  comes  the  said 

company,  by  J.  K.,  its  attorney,  and  having  heard  the  said  informa- 
tion read,  for  plea  in  this  behalf  says,  that  {here  set  forth  the  title  to  the 

franchise,  etc.):    And  by  this  warrant  the  said company  has  used 

during  all  the  time  in  the  said  information  mentioned,  and  still  uses,  the 

said  liberties,  privileges  and  franchises  of,  etc.,  etc.,  as  the  said 

company  well  might,  and  still  may;  without  this,  that  the  said 

company  has  usurped,  or  now  does  usurp,  the  liberties,  privileges  and  fran- 
chises aforesaid,  or  any  or  either  of  them,  upon  the  said  People,  as  by  the 

said  information  is  above  supposed.     All  which  matters  the  said 

company  is  ready  to  verify,  etc. ;  wherefore  it  prays  judgment,  etc. 

No.  309.     Plea  to  an  information  at  the  instance  of  a  relator. 

In  the Circuit  Court. 

Term,  18—. 

CD.  ^ 

ro,      -r.      ^^^-         „^  ^„j   ^  Information  in  nature  of  m<o  warranto. 
The  People,   etc.,   ex  rel.  i  ^ 

E.  F.  J      And  now  on  this  day  comes  the  said  C.  D., 

by  L.  M.,  his  attorney,  and  having  heard  the 
said  information  read,  for  plea  in  this  behalf  says,  that  {here  set  out  the 
election,  appointment,  or  grant,  and  everything  necessary  to  shoiv  a  good 
title  to  the  office  or  franchise).  And  by  this  warrant  the  said  C.  D.  hi^  held 
and  executed  during  all  the  time  in  the  said  information  mentioned,  and 
still  holds  and  executes,  the  said  office  {or  "  franchise,"  or  "office  and 

franchise  ")  of ,  as  he  well  might  and  still  may;  without  this,  that 

he,  the  said  C.  D.,  has  usurped,  or  now  does  usurp,  the  office  {or  "  fran- 
chise," e^c. ,)  aforesaid  upon  the  said  People,  as  by  the  said  information  is 
above  supposed.  All  which  matters  the  said  C.  D,  is  ready  to  verify,  etc. ; 
wherefore  he  prays  judgment,  etc. 

The  precedents  of  pleas  usually  commence  with  a  protestation 
of  the  insufficiency  of  the  information,  but  this  seems  to  be  un- 
necessary. Various  forms  of  pleas  in  bar  will  be  found  in  4  ('ow. 
E.  114,  6  Cow.  R  196, 15  Johns.  K.  363, 10  Mass.  E.  295,  2  Halst. 
E.  201,  and  5  Day's  Cas.  Err.  330:  and  the  substance  of  a  plea, 
adjudged  sufficient,  to  an  information  against  certain  persons 

'  Gunterman  v,  Peo^,  138  111.  518, 


QUO    WARRANTO.  581 

for  exercising  the  office  of  bridge  commissioners,  is  given  in 
14  111.  R.  476.  A  number  of  English  forms  of  pleas  and  sub- 
sequent pleadings  will  be  found  in  6  Wentw.  PI.  28  to  242. 

The  plea  in  bar  should  set  out  the  defendant's  title  at  length, 
and  conclude  with  a  general  traverse,  "  without  this,  that  he 
usurped,  etc."  '  And  where  the  title  set  forth  is  bad,  but  the 
user  confessed,  this  amounts  to  a  confession  of  the  usurpation.^ 
The  defendant  may  either  disclaim  as  to  all  the  franchises 
mentioned  in  the  information,  or  plead  as  to  all;  or  he  may 
plead  as  to  part  and  disclaim  as  to  part.  See  the  forms  of  dis- 
claimers in  4  Cow.  113,  from  2  Kyd  on  Corp.  405. 

Replication,  etc. — After  plea,  the  attorney  for  the  state 
demurs  or  replies,  and  the  subsequent  proceedings  are  in  the 
same  manner  as  in  civil  actions.^  Where  several  things  are 
necessary  to  make  a  complete  title  in  the  defendant,  the  atl  or- 
ney  for  the  state  may  take  issue  on  each;  and  if  any  one  of 
the  issues,  on  a  matter  essential  to  the  title,  is  found  against 
the  defendant,  there  shall  be  judgment  of  ouster.*  The  rep- 
lication should  not  take  issue  on  the  general  traverse,  "  with- 
out this,  that  he  usurped,  etc.,"  but  should  be  to  the  special 
matter,  that  the  defendant  may  know  how  to  apply  his  de- 
fense.* 

Authorities. — For  an  excellent  summary  of  the  law  in  re- 
lation to  informations  in  the  nature  of  a  quo  warranto^  see  .the 
note  to  People  v.  Richardson,  4  Cow.  R.  97;  and  see  also  Ang. 
&  Ames  on  Corp.,  Sec.  731  to  765,  and  Abb.  Dig.  Corp.  595  to 
600. 

'  Rex  V,  Blagd&n,  Gilb.  Rep.  145;  ••  People   v.  Richardson,  4    Cow. 

People  V.  Richardso7i,  4  Cow.  113.  118;    Bac.    Abr.,  Inf.    D.;    Rex    v 

2  Rexv.  Phillips,  1  Burr,  302;  Peo-  Doumes,  1  T.  R.  435. 

pie  w  Richardson,  Ai  Cow.  113.  ^People  v.    Richardson,    4   Cow. 

^People  V.   Richardson,   4    Cow,  118;  Bac.  Abr.,  Inf.  D. 
118;  2  Kyd  on  Coi-p.  406. 


CHAPTER  XIX. 

ARBITRATION  AND  AWARD. 

Arbitration  is  an  amicable  mode  of  settling  disputes  by  re- 
ferring them  to  the  decision  of  one  or  more  individuals  mutu- 
ally agreed  upon  by  the  parties.  The  agreement  is  called  a 
submission;  the  persons  agreed  upon  are  called  arbitrators; 
and  their  decision  is  called  an  award.  The  purpose  is  to  avoid 
needless  and  expensive  litigation,  and  to  expedite  the  settle- 
ment of  controversies.  The  object  has  met  with  so  much  favor, 
that  statutes  have  been  enacted  regulating  and  directing  the 
proceedings.  This  class  of  submissions  are  called  statutory 
submissions,  and  in  all  essential  particulars,  to  be  eifective, 
must  conform  substantially  to  the  statute. 

I.      STATUTORY    SUBMISSION. 

In  suits  pending. — Section  I  of  chapter  10  of  the  statute 
of  Illinois,'  entitled  "Arbitration  and  Award,"  provides 

"  That  whenever  the  parties  to  any  suit  pending  in  any  court 
of  record  shall  be  desirous  and  willing  to  submit  the  matter  in- 
volved in  such  suit  to  the  decision  of  arbitrators,  an  order 
shall  be  entered  directing  such  submission  to  three  impartial 
and  competent  persons,  to  be  named  in  such  order — such  ar- 
bitrators to  be  agreed  upon  and  named  by  the  parties.  But 
if  the  parties  are  unable  to  agree,  each  shall  name  one,  and  the 
court  the  third." 

This  section  relates  exclusively  to  pending  suits;  in  which 
class  of  cases  the  court  has  authority  to  enter  an  order  sub- 
mitting the  matter  involved  to  three  arbitrators  to  be  named 
in  the  order.^ 

n  Starr  &  Curtis'  An.  Stat.  300;         ^Martine  v.  Harvey,  12   Bradw. 
Rev.    Stat.   (1893)   163;    Rev.    Stat.      587;  Gregory  v.  Healy,  61  lU.  470. 
(1895)  166. 

(5S2) 


AKBITKATION   AND   AWARD.  583 

Under  this  section  the  court  has  no  authority  to  order  a  sub- 
mission to  one  arbitrator,  or  to  any  greater  or  less  number  than 
three;  nor  has  the  court  authority  to  make  an  order  of  sub- 
mission in  respect  to  any  matter  not  involved  in  a  pending  suit.' 

A  stipulation  in  a  suit  to  recover  damages  resulting  from 
negligence,  after  the  general  issue  is  filed,  to  waive  a  jurj'^  and 
submit  to  the  judge  the  question  of  the  amount  of  damages 
sustained  and  that  judgment  should  be  entered  for  the  amount 
found,  does  not  render  the  proceeding  an  arbitration.^ 

Proceedings  by  arbitrators. — Section  2  of  the  statute  re- 
ferred to  provides  that 

"  The  arbitrators  appointed  in  pursuance  to  the  foregoing 
provisions,  or  a  majority  of  them,  shall  proceed  with  dili- 
gence to  hear  and  determine  the  matters  in  controvers}^ 
They  shall  appoint  a  place  and  time  for  hearing,  and  ad- 
journ the  same  from  time  to  time,  as  may  be  necessary; 
and  on  the  application  of  either  party,  and  for  good  cause, 
they  may  postpone  such  hearing  from  time  to  time,  not 
extending  beyond  the  next  term  of  the  court  in  which  the  suit 
is  pending,  if  the  subject-matter  be  in  suit." 

After  the  arbitrators  shall  have  appointed  a  place  and  time 
for  hearing,  they  should  give  the  respective  parties  notice 
thereof.  It  is  essential  to  the  validity  of  an  award  that  such 
notice  be  given  as  will  afford  them  an  opportunity  to  be 
heard.* 

The  duty  of  giving  notice  to  the  parties  of  the  time  and 
place  of  hearing  of  matters  submitted  to  arbitration,  devolves 
upon  the  arbitrators.  They  have  it  in  charge  to  see  that 
sufficient  notification  is  made  to  each  party,  and  without  such 
notice  the  award  will  be  void,  unless  the  intention  of  the 
parties  is  that  the  arbitrators  shall  proceed  without  their 
presence.* 

^Martins  v.  Harvey,  12   Bradw.  Alexander  v.   Cunningham,  111  HL 

587;  Low  v.  Nolle,  15  111.  368;  Ham-  511;  Toifing  Co.  v.   Taylor,  126  111. 

iltonv.  Hamilton, 'illW.l^^;  CMck-  250;  Ins.   Co.   v.    Hamilton,  48  111. 

eriiig  v.  DeVoll,  55  111.  App.  442.  App.  593. 

"^Broiimv.  Brick  Co.,  132  111.  648.  *  Towing  Co.  v.   Taylor,   126  III. 

2  Williams  v.  Schmidt,  54  III.  205;  250. 
Ingraham  v.    Whitmore,  75  111.  24; 


584:  ARBITRATION   AND    AWARD. 

To  set  aside  an  award  for  w^ant  of  notice  of  the  time  and 
place  of  hearing,  it  is  not  necessary  to  show  corruption  on  the 
part  of  the  arbitrators.' 

Oath  of  arbitrators. — Section  3  of  the  act  relating  to  arbi- 
trations and  awards,  requires  that 

"  Before  proceeding  to  hear  any  testimony  in  the  cause, 
the  arbitrators  shall  be  sworn  faithfully  to  hear,  examine 
and  determine  the  cause,  according  to  the  principles  of  equity 
and  justice,  and  to  make  a  just  and  true  award  according  to 
the  best  of  their  understanding;  which  oath  may  be  admin- 
istered by  any  officer  authorized  to  administer  oaths." 

There  seems  to  be  a  conflict  of  authority  as  to  whether  a 
statutory  award  is  valid,  if  the  arbitrators  are  not  sworn, 
where  the  statute  directs  that  they  shall  be.  In  Louisiana 
and  Kentucky  it  has  been  held  that  the  award  is  void  if  they 
are  not  sworn.^  In  New  Jersey  it  has  been  decided  both 
ways.*  In  New  York,  Missouri,  Wisconsin  and  Illinois,  and 
perhaps  in  other  states,  it  is  held  that  the  parties  may  waive 
the  requirement  of  the  statute;  and  that  if  they  tacitly  go  on 
with  the  hearing  before  unsworn  arbitrators,  they  shall  be 
deemed  to  have  so  waived  the  oath.* 

It  would  certainly  be  a  fraud  for  one  of  the  parties,  noticing 
the  omission  to  take  the  oath  required  by  the  statute,  to  keep 
silent,  and  if  the  award  should  be  favorable,  to  still  remain 
silent,  but  if  unfavorable,  to  move  to  set  it  aside  because  of 
the  undisclosed  omission;  and  it  is  doubtful  whether  the 
neo"lect  to  take  the  oath  would  be  fatal,  even  on  a  motion  for 
judgment  under  the  statute." 

An  arbitrator  will  not  be  allowed  to  impeach  his  award  by 
merely  saying  that  he  and  his  co-arbitrators  neglected  to  be 
sworn." 

'  Ehnendorff  v.  Harris,  23  Wend.  *  Hoimrd  v.  Sexton,  1  Denio  440 

628;  Ingraham  v.  Whitmore,  75  111.  Howard    v.  Sexton,  4  Comst.   157 

24;  Reeves  v.  Eldrig,  20  111.  383;  Al-  Broivning  v.  Wheeler,  24  Wend.  258 

exandery.  Cunningham,  111  111.  516.  Tucker  v.  Allen,  47  Mo.  488;  Hill  v. 

^Overton  v.   Alpha,   13  La.  Ann.  Taylor,  15  Wis.  190;  R.  R.   Co.  v. 

558;  French  v.  Moseley,  1  Littell  247;  Alfred,  3  Bradw.  511. 

Lile  V.  Barnett,  2  Bibb  166.  *  R.   R.    Co.  v.  Alfred,  3  Bradw. 

3  Ford  \.  Potts,  1  Halst.  393;  con-  511. 

tra,  Inslee  v.  Flagg,  2  Dutclier,  365.  ^  Stone  v.  Atu-ood,  28  Xll.  30;  R.  R. 


AEBITKATION    AND   AWAED.  585 

"Whether  arbitrators  are  sworn  or  not,  the  award  will  be 
binding  as  a  common  law  award,  and  the  party  in  whose  favor 
it  is  rendered,  can  not,  merely  because  the  arbitrators  were  not 
sworn,  be  deprived  of  his  right  to  sue  upon  the  award,  or  file 
a  bill  to  enforce  its  performance.  If  the  submission  does  not 
require  the  arbitrators  to  be  sworn,  the  award  is  clearly  valid 
as  a  common  law  award.' 

To  entitle  the  prevailing  party  to  a  judgment  upon  the 
award,  the  arbitrators  should  be  sworn  as  well  as  the  witnesses. 
The  solemnities  under  which  testimony  is  taken,  as  provided 
in  the  statute,  must  not  be  disregarded.^  But  it  need  not  ap- 
pear upon  the  face  of  the  award  that  the  arbitrators  were 
sworn.^ 

Subpoenas — Witnesses — Swearing  same. — It  is  provided  in 
section  4  of  the  statute  referred  to,  that 

"  The  several  clerks  of  the  circuit  courts,  and  the  justices  of 
the  peace  in  their  several  counties,  may  issue  subpoenas  for  the 
attendance  of  witnesses  before  arbitrators;  if  any  witness  after 
being  duly  summoned,  shall  fail  to  attend,  the  arbitrators  may 
issue  an  attachment  to  compel  his  attendance,  and  the  said  wit- 
ness shall  moreover  be  liable  to  the  party  for  refusing  to  at- 
tend the  same  as  in  trials  at  law.  Any  one  of  the  arbitrators 
may  administer  oaths  and  affirmations  to  witnesses;  they  may 
punish  contempts  committed  in  their  presence  during  the  hear- 
ing of  a  cause,  the  same  as  a  court  of  record,  and  may  admit 
depositions  to  be  read  in  evidence,  the  same  as  in  trials  at 
law." 

The  hearing. — It  is  a  rule  that  all  the  arbitrators  must  act, 
and  act  together.  They  must  each  be  present  at  every  meet- 
ing; and  the  witnesses  and  the  parties  must  be  examined  in 
the  presence  of  them  all,  for  the  parties  are  entitled  to  have 
recourse  to  the  arguments,  experience  and  judgment  of  each 

Co.Y.  Alfred,  3  Bradw.   511;  Pull-  Jezvett,  1  Barb.   Ch.  173;  Bradstreet 

iam  V.  Pensoneau,  33  III.  375.  v.  Erskine,  50  Me.  407. 

^  Eisenvieyer  ^ .  Sauter,  11  III.  5lo;  ^Gregory    v.   Healy,  61   111.  470; 

Smith  V.  Douglas,  16  111.  34;  Ross  v.  Jackson  v.   Steele,  Sneed  (K3\)  21; 

Hammond,  IQ  111.    99;  i2.  i2.  Co.  v.  Otis  v.  Northroj),  2  Miles  (Penn.)SSO. 

Alfred,   3    Bradw.    511;    Tynan  v.  ^R.R.  Co.  v.  Alfred, 'd  Bradsv.  oil; 

Tate,    3    Neb.     388;     Woodrow   v.  Duncan  v.  Fletcher,  Breese  323. 
O'Connor,  28  Vt..  776;    Winship  v. 


586  AKBITKATION   AND    AWARD. 

arbitrator  at  every  stage  of  the  proceedings,  brought  to  bear  on 
the  minds  of  his  fellow  judges,  so  that  by  conference  they  shall 
mutually  assist  each  other  in  arriving  at  a  just  decision.' 

So  when  any  evidence  is  heard  in  the  absence  of  one  of  the 
arbitrators  without  the  assent  of  one  of  the  parties,  and  an 
award  is  made  against  him,  it  w411  be  invalid,  and  may  be  set 
aside  at  the  instance  of  such  party .'^ 

Publication  of  award. — Section  5  of  the  same  statute  pro- 
vides that  "  the  award  of  the  arbitrators,  or  a  majority  of 
them,  shall  be  drawn  up  in  writing,  and  signed  by  such  arbi- 
trators, or  a  majority  of  them,  and  a  true  copy  of  such  award 
shall,  without  delay,  be  delivered  to  each  of  the  parties 
thereto." 

The  award. — The  authority  of  arbitrators  is  derived  entirely 
from  the  submission,  consequently  their  award  must  not  em- 
brace any  matters  not  submitted  to  them;  and  if  it  does,  it 
will  be  void  at  least  for  the  excess.'  If  it  contains  any  allow- 
ance for  matters  not  submitted,  it  is  wholly  void  if  it  is  not 
distinguishable  from  the  residue,  and  unless  it  appears  that  the 
consideration  of  the  unsubmitted  matters  was  so  disconnected 
from  the  residue  as  to  have  had  no  influence  upon  it.*  But 
the  award  will  stand  if  the  parties  ratify  it; "  and  if  one  party 
accepts  from  the  other  party  part  performance  of  his  part  of 
such  an  award,  he  is  estopped  from  afterward  setting  up  its 
invalidity.*  An  award  in  excess  of  the  matter  submitted  does 
not  annul  the  original  contract  which  was  the  subject  of  the 
reference,  further  than  the  award  pursues  the  submission,  nor 
then  if  it  is  void  iti  toto,  because  the  parties  are  left  precisely 
the  same  as  though  no  award  had  been  made.^ 

Unless  the  award  upon  its  face  shows  that  matters  not  sub- 

^Eussell     on     Arbitration,     209;  Penniman  v.   Patchin,   6  Vt.  325; 

Sviith  V.  Smith,  28  111.  56.  Duncan    v.    Fletcher,    Broese    323; 

^Towing  Co.   v.   Taylor,  126  111.  Cogswell   v.    Cameron,    136    Mass. 

250.  518. 

^Slierfy   v.  Graham,   72    111.  1.58;  ^  Cidver  v.   Ashley,  19  Pick.   300; 

Alfred  v.  R.  R.  Co.,  92  111.  609.  Taylor  v.  St.  Johnsbury,  57  Vt.  106; 

*  Busse  V.  Agnew,  10  Bradw.  527;  Connett  v.  City,  114  111.  233. 

Buntain    v.     Czirtis,    27    111.    374;  '  Walsh  v.    Gilmor,    3    Gill    383; 

Stearns  v.  Cope,  109  111.  340.  Bullitt  v.  Musgrove,  3  Gill  31. 

''  Bullitt  V.  MiLsgrave,  3  Gill.  31; 


AEBITKATION   AND   AWARD.  587 

mitted  are  embraced  in  it,  it  will  be  presumed  that  it  only 
comprehends  matters  that  were  within  the  terms  of  the  sub- 
mission, and  the  burden  is  upon  the  party  attacking  it  upon 
that  ground  to  establish  its  excessive  character.' 

In  New  Hampshire  it  is  held  that  an  award  covering  mat- 
ters in  excess  of  the  submission  will  not  be  set  aside  for  that 
reason,  if  the  amount  of  the  excess  is  ascertained  and  released 
or  discharged."  But  this  would  depend  entirely  upon  the  fact 
whether  the  excess  could  be  readily  ascertained,  and  distin- 
guished from  the  residue.* 

The  award  must  be  co-extensive  with  the  submission,  and 
cover  all  the  matters  submitted.*  And  if  the  arbitrators 
refuse  to  decide  upon  some  matters  submitted,  their  award 
will  be  void.*  But  even  though  the  award  does  not  in  terms, 
yet  if,  in  effect,  it  includes  all  matters  submitted,  it  is  valid.® 

Where  the  arbitrators  recite  in  their  award  that  they  have 
disposed  of  a  matter  submitted  to  their  arbitrament,  in  the 
manner  required  by  the  agreement  for  the  submission,  it  can 
not  be  shown  by  parol  evidence  of  the  arbitrators,  that  they 
disposed  of  such  matters  in  another  and  different  manner.'' 

An  award  must  be  certain  to  a  common  intent;  ^  but  every 
intendment  is  made  in  its  favor,'  where  no  fraud,  corruption 

J  Root  V.  Eenttfick,  15  111.  461 ;  Hay-  dron  v.  Norris,  12  Cal.  333;  Buntam 

imrd  V.  Harmon,   17  111.  477;   3Ic-  v.  Curtis,  27  111.  874. 

Donald  v,  Amout,  14111.  58;  Tucker  «  Smith  v.  Demarest,  8  N.  J.  Law 

V.  Page,  69  111.  179;  Hubbard  v.  Fir-  195;    Harden  v.  Harden,   11   Gray, 

man,  29  111.90;  Parsons  v.  Aldrich,  485;  Pearce  v.  Mclntyre,2%  Mo.  493. 

6  N.  H.  264;  Reynolds  v.  Reynolds,  ■>  Schmidt  v.  Glade,  126  111.  485. 

15   Ala.  398;    Blair  v.  Wallace,  21  s  Burroivs  v.  Guthrie,  61   III.  70; 

Cal.  817.  Hoicardv.  Babcock,  21  111.259;  Red- 

'^  Richardson  v,  Huggins,  23  N.  H.  mondv.  Redford,  40  111.  267;  Ingra- 
in, ham    V.   Whitmore,   75  111.   24;  Al- 


*  Satoyer  v.  Freeman,  35  Me.  542 
Glade  v.  Schmidt,  20  Bradw.  157 
Lee  V.   Delano,   39  N.  J.  Eq.    193 


fred  V.  R.  R.  Co.,  92  III.  609;  Mc- 
Donald V.  Bacon,  3  Scam.  428; 
Tucker  v.  Page,  69  111.  179. 


Caldwell  on  Arbitration,  321;  White  »  Root  v.  Renunck,  15  111.461;  Mc- 

V,  Arthur,  59  Cal.  336.  Millan  v.   James,  105  111.  194;  Gud- 

*Steere  v,   Broumell,  113  111.  415;  gell  \.  Pettigrew,  26  111.  305;  Whit- 

Buntain  v.  Curtis,  27  111.  374.  more  v.  Mason,  14  111.  392;  Shear  v. 

5  Smith  V.  Potter,  27  Vt.  804;  Har-  Master,  8  Bradw.  119;  Darst  v.  Col- 

ker  V.  Hough,  7  N.  J.  Law  428;  Mul-  tier,  86  111.  96. 


588  AKBITKATION    AND   AWARD. 

or  unfairness  is  shown.'  In  order  to  invalidate  an  award 
upon  the  ground  that  it  does  not  embrace  all  the  matters  sub- 
mitted, it  must  appear  that  they  were  made  known  to  the  ar- 
bitrators, and  that  they  declined  or  neglected  to  pass  upon 
them.'' 

Prima  fade,  an  award  is  good,  although  not  co-extensive 
with  the  submission,  because  it  is  presumed  that  it  embraces 
all  that  was  called  to  the  attention  of  the  arbitrators;  and  if  in 
fact  other  matters  we7'e  called  to  their  attention,  and  not  passed 
upon  by  them,  the  fact  must  be  proved.' 

Either  party  not  complying,  award  may  be  filed  in  court. 
— Section  6  of  the  act  in  relation  to  arbitrations  and  awards 
provides  that 

"  If  either  of  the  parties  neglect  to  comply  with  the  said 
award,  the  other  party  may,  at  any  time  within  one  year  from 
the  time  of  such  failure,  file  such  award,  together  with  the 
submission  or  arbitration  bond,  in  the  court  named  in  the 
submission." 

Judgment  upon  award. — Section  7  declares  that 

"  The  party  filing  such  award  may,  at  the  next  term  after 
such  filing,  by  giving  four  days'  notice  of  his  intention  to  the 
opposite  party,  and  if  no  legal  exceptions  are  taken  to  such 
award  or  other  proceedings,  have  final  judgment  thereon,  as 
on  the  verdict  of  a  jury,  for  the  sum  specified  in  said  award  to 
be  due,  together  with  the  costs  of  arbitration  and  of  the  court; 
and  execution  may  issue  therefor,  as  in  other  cases." 

This  section  applies  as  well  to  arbitrations  in  matters  not  in 
suit,  under  section  lQ,post,  as  to  matters  in  suits  pending 
under  section  1,  ante.*'  A  judgment  will  not  be  entered  upon 
an  award  unless  it  is  made  in  pursuance  of  the  statute."    But 

1  Hayward  v.  Harmon,  17111.  477;  tain  v.  Curtis,  27  III.  374;  Busse  v. 
McDonald    v.    Arnout,    14    111.  58;      Agnew,  10  Br adw.  521. 

Steams  v.  Cope,  109  111.  340.  "*  F.  L.  Co.  v.  Ragsdale,  12  Bradw. 

2  Whetstone    v,    Thomas,  25     111.       441. 

361;  McNeavY.  Bailey,  18  Mo.  251;  *  Weing    y.    Dopier,   17  111,  111; 

Varney  v.  Breioster,  14  N.  H.  49.  Lowe   v.    Nolle,   15  111.   368;  Cook 

3  Ott  V.  Schroeppel,  5  N.  Y.  482;  v.  Schroeder,  55  111.  530;  Marline  v. 
McNearv.  Bailey,  18  Me.  251;  Bun-  Hai-vey,    12  Bradw.  587;  Smith  v. 

Douglas,  16  111.  34, 


ARBITRATION    AND   AWARD.  589 

the  court  will  enter  judgment  on  a  common  law  award  by  the 
consent  of  the  parties.* 

Jurisdiction  to  enter  a  judgment  upon  an  award  of  arbitra- 
tors, being  wholly  given  b}''  statute,  the  proceedings  must  con- 
form strictly  to  the  requirements  of  the  statute,  or  the  court 
will  have  no  jurisdiction  or  authority  to  enter  judgment  upon 
the  a  ward.  ° 

Where  the  parties  to  a  suit  have  submitted  the  matters  in- 
volved to  arbitrators,  and  stipulated  that  their  award  shall  be 
entered  as  the  finding  of  the  court,  the  complainant  can  not 
dismiss  the  suit  after  a  motion  to  set  aside  the  award  has  been 
overruled,^ 

Enforcement  of  award. — Section  8  of  the  act  relating:  to 
arbitrations  and  awards,  provides  that 

"  When  the  award  requires  the  performance  of  any  act  other 
than  the  payment  of  money,  the  court  rendering  such  judg- 
ment shall  enforce  the  same  by  rule,  and  the  party  refusing 
or  neglecting  to  comply  with  such  rule,  may  be  proceeded 
against  by  attachment  or  otherwise,  as  for  a  contempt.". 

This  section  applies  to  arbitrations  under  the  statute  of  con- 
troversies not  in  suit.  When  anything  is  to  be  done  other 
than  the  payment  of  money,  as  where  the  submission  is  of  all 
matters  in  dispute  with  regard  to  a  right  of  way  of  a  railroad 
company,  the  award  could  not  be  one  on  which  a  judgment 
could  properly  be  rendered  for  a  sum  of  money  only.  The 
payment  of  money  and  conveyance  of  the  right  of  wa\'  in  such 
a  case,  would  be  properly  made  concurrent  acts;  but  the  en- 
forcement as  a  statutory  award  can  only  be  compelled  under 
the  above  section  8.* 

Award,  when  set  aside. — It  is  provided  in  section  9  of  the 
same  act,  that 

"  If  any  legal  defects  appear  in  the  award  or  other  proceed- 
ings, or  if  it  shall  be  made  to  appear  on  oath  or  affirmation,  that 
said  award  was  obtained  by  fraud,  corruption  or  other  undue 

'  31orey  \.  Mower  Co.,  90  111.  307.  *  R.  R.  Co.   v.   Alfred,   3  Bradw. 

'Martine  v.  Harvey,   12   Bradw.  511;  ie.  R.  Co.  v.  R.  R.  Co.,  66  HI. 

587.  174. 
^Ives  V.  Ashelby,  26  HI.  App.  244. 


590  AKBITKATION   AND    AWAKD. 

means,  or  tbat  such  arbitrators  misbehaved,  said  court  may 
set  aside  such  award." 

This  section  applies  to  arbitrations  under  the  statute, 
whether  in  cases  pending,  or  disputes  not  in  suit.' 

Mere  error  of  arbitrators  as  to  the  law  or  facts,  is  not  ground 
for  setting  aside  the  award;  "^  but  if  the  submission  requires 
an  award  to  be  an  entirety,  an  award  which  is  too  narrow  or 
too  broad,  will  bind  neither  party." 

The  award  of  two  or  three  arbitrators  is  void,  if  the  third 
arbitrator  has  no  notice  to  act  in  the  matter;  or  if  it  purports 
to  be  the  award  of  three,  when  in  point  of  fact,  it  was  only  the 
award  of  two  of  them,* 

Fraud. — An  award  obtained  by  the  fraud  of  the  party,"  or 
by  reason  of  fraud,  corruption,  partiality  or  gross  misconduct 
on  the  part  of  the  arbitrators,  will  be  set  aside  by  a  court  of 
equity,  where  courts  of  law  do  not  possess  the  power,  as  being 
against  equit}^  and  good  conscience,"  unless  the  party  apply- 
ing therefor  has  done  that  which  amounts  to  a  waiver.'  If 
there  has  been  no  waiver,  the  award  may  be  set  aside  upon  those 
grounds,  even  though  the  parties  agreed  in  the  submission 
that  there  should  be  no  exception  or  appeal.* 

In  order  to  impeach  an  award  upon  the  ground  of  fraud, 
corruption  or  misconduct  of  an  arbitrator,  the  proof  must  be 
clear  and  conclusive  and  not  depend  upon  the  naked  assertion 
of  the  other  party,  or  upon  mere  suspicion."  But  it  may  be 
inferred,  where  the  award  is  so  manifestly  unjust  as  irresisti- 

'  See  sections  16-18,  post.  '■  Bulkley    v,    Starr,    2    Day  552; 

«  Pottle  V.  McWorter,  13    111.  454;  Spurck  v.  Crook,  19  111.  415. 

Ross    V.     Watt,    16     111.    99;    Mer-  ^  Baird  v.  Crutchfield,  6  Humph. 

rett  V.  Merrett,  11  111.  565;  Sherfy  v.  171;  Rand  t.  Redington,   13  N.  H. 

Graham,  72  111.  158;  Buntain  v.  Cur-  72;  Conway  v.  Duncan,  28  Ohio  102; 

tis,  27  111.  374;    Tucker  v.  Page,  69  Toiving  Co.  v.   Taylor,   126  111.  250. 

111.    179;    Wlietstone  v.    Thomas,  25  ">  Noyes  v.  Gould,  bTif.B..  20;  Sea- 

111.  361.  ton  V.  Kendall,  61  111.  App.  289. 

8  Alfred  v.  R.  R.  Co.,  92  111.  609;  ^  Speer  v.  Bidwell,  44  Penn.  33. 

Glade  v.   Schmidt,   20  Bradw.  157;  «  Coryell  v.  Coryell,  1   N.  J.  Law 

Steams  v.  Cope,  109  111.  340.  888;  Hardeman  v.  Burge,  10  Yerg. 

*  Bannister  v.    Read,  1   Gilin.  92;  202;  Hamilton  y.  Hor^  3  Blackf.  68; 

see  Ins.  Ass'n  y.  Briggs,  22  111.  App.  Gallant  v.  Downey,  2  J.  J.  Marsh. 

107.  346. 


ARBITRATION    AND   AWARD.  591 

bly  to  lead  to  the  conclusion,  as,  where  the  amount  awarded 
is  nearly  three  times  as  much  as  was  claimed.'  To  warrant 
the  court  in  setting  aside  an  award  upon  the  ground  of  fraud 
or  corruption  upon  the  part  of  the  arbitrators,  upon  the  ground 
of  excessive  damages,  the  amount  awarded  must  be  so  grossly 
extravagant  as  to  negative  the  idea  that  it  expresses  the  honest 
judgment  of  the  arbitrators." 

If  an  arbitrator  was  intoxicated  during  the  hearing,  the 
award  will  be  set  aside  without  any  other  proof,  as  that  is  evi- 
dence of  such  misconduct  as  ought  to  vitiate  his  action  upon 
the  matters  between  the  parties.^ 

Where  there  is  no  evidence  of  partiality,  an  award  will  not 
be  set  aside  because  one  of  the  arbitrators  is  a  creditor  of  one 
of  the  parties;  *  or  had  previously  expressed  an  opinion  upon 
the  matters  in  dispute.^  And  it  is  no  ground  for  setting  aside 
an  award  of  an  arbitrator,  that  he  had  formerly  been  counsel 
in  another  suit  for  the  party  in  whose  favor  he  found, 
although  this  fact  was  not  known  or  communicated  to  the 
party  against  whom  the  award  was  made,  or  to  his  counsel,  in 
the  absence  of  evidence  that  the  fact  was  intentionally  con- 
cealed." 

Private  conversations  concerning  the  controversy  between 
a  party,  his  agent  or  attorney,  and  one  of  the  three  arbitra- 
tors, after  the  selection  of  the  latter,  is  a  ground  in  chancery  for 
setting  aside  the  award; '  although  a  conversation  with  a  third 
party  is  held  to  be  no  ground  for  disturbing  the  award;  but 
an  arbitrator,  after  being  chosen,  should  not  listen  to  state- 
ments as  to  matters  involved,  except  when  given  in  evidence." 

It  is  the  duty  of  an  arbitrator,  as  of  a  juror  or  judge,  to 
keep  himself,  as  far  as  possible,  free  from  any  influence  that 

'  R.  R.  Co.  V.  Moore,  28  Geo.  398;  26;   Wallis  v.  Carpenter,  13  Allen. 

R(ind  V.  Redington,  13  N,  H.  72.  19. 

'^Burchell  v.   Marsh,  17  How.  (U.  *  Graves  v.  Fisher,  5  Me.  69;  Fox 

S.)  344;  Rudd  v.  Jones,  4  Dana  229.  v.  Hazelton,  10  Pick.  275. 

Van    Cortlandt    v.     Underhill,   17  "^  GoofZr/c/i  v.  lf«Z&er<,  123 Mass.  190 

John.  405.  '  Mosier  v.  Shear,  102  III.  169. 

» Smith  V.  Smith,  28  111.  56.  »  Shear  v.  Mosier,  8  Bradw.  119; 

*  Fischer  v.    Towner,   14  Comm.  Strong  v.  Strong,  7  Cush.  560;  John- 
son V.  Holyoke,  107  Mass.  473. 


592  AEBITKATION    AND    AWARD. 

would  tend  to  impair  his  impartiality  or  expose  him  to  the 
suspicion  of  prejudiced  But  as  a  long^er  interval  of  time  usu- 
ally occurs  between  his  selection  and  his  service,  subjecting- 
him  to  greater  exposure,  and  not  being  specially  advised  of 
his  duty,  and  restrained  in  his  conduct  by  the  direction  and 
authority  of  a  court,  greater  latitude  is  to  be  expected  and 
tolerated  in  his  case,  than  in  that  of  a  juror,^ 

It  is  held  to  be  sufficient  to  authorize  a  court  of  equity  to 
enjoin  a  suit  at  law  upon  an  award,  and  set  aside  an  award, 
that  one  of  the  parties  in  interest  made  a  statement  to  one  of 
the  arbitrators,  in  the  absence  of  the  adverse  party,  designed 
and  having  a  tendency  to  improperly  affect  his  decision  as  an 
arbitrator,  without  showing  that  such  statement,  in  fact,  pro- 
duced any  harmful  result  to  the  other  party.  And  a  party  to 
an  arbitration,  who,  by  overt  acts,  attempts  to  corrupt  or  im- 
properly influence  the  arbitrators,  or  any  one  of  them,  to 
make  an  award  in  his  favor,  will  not  be  heard  to  say  that  he 
was  impotent  to  accomplish  what  he  sought,  and  to  raise  an 
issue  thereupon.^ 

Mistake. — A  common  law  award  can  not  be  set  aside  for 
mistake,  either  of  law  or  facts,  unless  the  error  is  so  palpable 
as  to  show  that  injustice  has  been  done,  as  they  are  the  judges 
of  both.  But  under  statutory  submissions,  it  is  held  that  an 
award  may  be  set  aside  for  mistakes  as  to  the  facts,  when 
such  mistake  clearly  appears  upon  the  face  of  the  award;  *  and 
the  arbitrators  were  evidently  misled  or  deceived  thereby.* 

The  instances  are  rare,  in  which  an  award  .will  be  set  aside 
for  mistake  of  facts.'     And   an  award  will  only  be  set  aside 

1  Shear  v,  Mosier,   8  Bradw.  119;  ler  v.  Wall,  9    R.  I.    264;    Sisk  v. 

Morville  v.  Tract  Soc,    123    Mass,  Garey ,  21  Md.  401;   Morse  on  Arb. 

139;  Gas  Co.  v.  City,  5  W.  Va.  492;  and  Award,  534;   3  Story's  Eq.,  Sec. 

see  Haiinroth  v.  Peters,  50  111.  App.  1452a. 

366.  '*  Conger  v.  James,  2  Swan.   213; 

^  Shear  v.  Hosier,  8  Bradw.  119;  Halstead  v.   Seaman,  52  How.  (N. 

Jones  V.  3{iller,  1  Dallas  205;  Graves  Y.)415;    Fudicker  v.  Ins.  Co.,  62  N. 

V.  Fisher,  15  Maine  54;  Gas  Co.  v.  Y.  392. 

City,  5  West  Va.  492.  *  Roloson  v.  Carson,   8  Md.  208; 

"  Catlett    V.  Dougherty,   114    111.  6  Wait's  Ac.  and  Def.  549. 

568;  Hosier  v.  Shear,   102  111.    169;  ^  Pulliam   v.    Pensoneau,   33    111. 

Strong  v.  Strong,  9  Cush.  574;  Cut-  374;    Si^urck  v.    Cook,  19  111.   425; 


AEBITEATION    AND    AWARD.  593 

upon  the  ground  of  a  mistake  as  to  the  law,  when  the  submis- 
sion requires  that  they  shall  decide  according  to  law,  or  it  is 
evident  from  their  award  that  they  intended  so  to  decide,  but 
acted  under  a  clear  mistake  as  to  what  the  law  was.' 

Of  award  prepared  by  one  of  the  attorneys.— The  fact 
that  an  award  of  arbitrators  is  prepared  by  the  attorney  of 
the  successful  party,  affords  no  ground  for  setting  it  aside 
where  it  fully  expresses  the  findings  and  conclusions  of  the 
arbitrators." 

Signing  of  the  award. — It  is  not  necessary  that  the  award 
should  be  signed  at  the  same  time  and  place;^*  nor  that  the 
parties  should  be  present  when  signed.* 

When  conrt  may  correct  award. — Section  10  of  the  act  re- 
lating to  arbitration  and  awards  provides  that 

"  If  there  be  any  evident  miscalculation  or  misdescription, 
or  if  the  arbitrators  shall  appear  to  have  awarded  upon  mat- 
ters not  submitted  to  them,  not  affecting  the  merits  of  the  de- 
cision upon  the  matters  submitted,  or  where  the  award  shall 
be  imperfect  in  some  matters  of  form,  not  affecting  the  merits 
of  the  controversy,  and  where  such  errors  and  defects,  if  in  a 
verdict,  could  have  been  lawfully  amended  or  disregarded  by 
the  court,  any  party  aggrieved  may  move  the  court  to  modify 
or  correct  such  award." 

This  section  does  not  give  the  court  equitable  power  to  re- 
form an  award.  It  is  intended  to  give  the  court  authority 
to  correct  awards  in  matters  of  form  merely.' 

There  is  no  doubt  of  the  power  of  a  court  of  equity  to  cor- 
rect a  mistake  in  an  award  where  it  is  the  mutual  mistake  of 
all  the  arbitrators.  The  award  is  sometimes  treated  as  the 
judgment  of  a  tribunal  of  the  parties'  own  choosing,  and 
sometimes  as  an  agreement  which  they  have  authorized  the 
arbitrators  to   make  for  them.     Regarding   it    in   the  latter 

Water   Co.    v.    Gray,  6  Mete.  131;  ^Steere  v.  Broumell,  113  111.  415; 

Learned  v.  Bellows,  8  Vt.    79;    3Ic-  see  Kilderhouse  v.  Hall,  116  111.  147. 

Calinotit  V.  Wliittaker,  3  Rawle,  84;  ^  Blodgett  v.  Prince,  109  Mass.  44. 

2Greenl.  on  Ev.,  Sec.  78.  *  Roloson  v.    Carson,   8  Md.  208; 

'  Crissman   v.    Crissman,  5  Ired.  Saunders   v.   Heaton,   12    Ind.    20; 

498;  Muldrow  v.   Norris,  2  Cal.  74;  Steerev.  Brownell,  113  111.  415. 

Johnson    v.   Noble,   13  N.   H.  28G;  »  Howell  v.  Hotcell,  26  III.  460;  see 

Johns  V.  Stevens,  3  Vt.  308.  Farr  v.  Johnson,  25  III.  522. 
38 


59-i  ARBITRATION    AND    AWARD. 

character,  courts  of  equity  have  assumed  to  correct  a  mistake 
in  an  award  where  it  is  mutual,  was  acquiesced  in  by  all  the 
arbitrators,  and  where  the  award  as  made  is  not  their  award, 
but  if  corrected  would  be  the  award  of  all  of  them.' 

If  an  award  is  within  the  submission,  and  contains  the 
honest  decision  of  the  arbitrators  after  a  fair  hearing,  a  court 
of  equity  will  not  set  it  aside  for  error  in  law  or  fact.^ 

When  motion  to  set  aside,  or  modify,  must  be  made. — It 
is  required  by  section  11  of  the  same  statute  that 

"  Application  to  set  aside,  modify  or  amend  such  award,  as 
provided  in  the  two  preceding  sections,  must  be  made  before 
the  entry  of  final  judgment  on  such  mw^rd;  provided,  nothing 
herein  contained  shall  be  so  construed  as  to  deprive  courts  of 
chancery  of  their  jurisdiction,  as  in  other  cases." 

Error  and  appeals.— Section  12 of  the  same  statute  author- 
izes— 

"  Writs  of  error  and  appeals  may  be  taken  from  any  de- 
cision of  the  court  by  the  party  deeming  himself  aggrieved, 
as  in  other  cases;  and  if  the  supreme  court  shall  remand  the 
case,  such  further  proceeding  shall  be  had  as  the  nature  of  the 
case  may  require." 

There  is  no  appeal  from  or  review  of  an  award  within  the 
jurisdiction  of  the  arbitrators,  except  for  fraud,  partiality  or 
misconduct.* 

,  Compensation  of  arbitrators — Fees  of  witnesses. — Section 
13  of  the  same  statute  provides  that 

"  Each  arbitrator  shall  be  allowed,  for  every  day's  attend- 
ance to  the  business  of  his  appointment,  $2,  to  be  paid  in  the 
first  instance  by  the  party  in  whose  favor  the  award  shall  be 
made,  but  to  be  recovered  of  the  other  party  with  the  other 
costs  of  suit  if  the  award  or  final  decision  shall  entitle  the 
prevailing  party  to  recover  costs.  Witnesses  shall  receive  the 
same  fees  for  attendance  at  arbitrations  as  shall  be  allowed 

^  Einsmeyer  V.  Sauter,  77  111.  515;  ^  BurcheU  v.  Marsh,  58  U.  S.  (17 

Stone  V.  Atwood,  28  111 .  30 ;  Ballance  How . )  344 . 

v.l7H,der/i,iZZ,  3  Scam.  453;  PwZZzaw  ^Sherfy  v.    Graham,   73   111.158; 

V.  Pensoneau,  33  111.  375;   see  Toby  Phelps  \.  Dolan,  75  111.  90;  see  Vvn 

V.  Rou-e,  18  Bradw.   293;   Catlctt  v.  V/inJdev.  Beck,  2  Scam,  488;  Rogas 

Dougherty,  114  111.  508.  v.  Holden,  13  111.  293. 


AEBITKATION    AND    AWARD.  595 

them  in  the  circuit  courts.  Sheriffs,  constables,  clerks  and 
justices  of  the  peace  shall  be  entitled  to  the  same  fees  for 
services  performed,  in  relation  to  any  arbitration,  as  shall  be 
allowed  by  law  for  the  like  services  in  their  respective  courts." 

Arbitrators  may  be  compelled  to  duty. — Section  14  of 
the  same  statute  declares  that  "  arbitrators  may  be  compelled 
by  order  of  the  court  in  which  any  cause  submitted  to  them 
shall  be  pending,  to  proceed  to  a  hearing  thereof,  and  to  make 
a  report  without  unnecessary  delay." 

Record  of  reference. — It  is  provided  by  section  1 5  of  the 
same  statute  that  "  when  any  cause  pending  in  any  court 
shall  be  referred,  as  herein  provided,  an  entry  of  such  refer- 
ence shall  be  made  on  the  record,  and  day  shall  be  given  to 
the  parties,  from  time  to  time,  until  the  arbitrators  report,  or 
they  may  be  thereof  discharged,  on  filing  such  report." 

In  matters  not  in  suit. — Section  16  of  the  statute  relat- 
ing to  arbitrations  and  awards  provides  that 

"All  persons  having  a  requisite  legal  capacity  may,  by  an 
instrument  in  writing,  to  be  signed  and  sealed  by  them,  sub- 
mit to  one  or  more  arbitrators  any  controversy  existing  be- 
tween them,  not  in  suit;  and  may,  in  such  submission,  agree 
that  a  judgment  of  any  court  of  record,  competent  to  have 
jurisdiction  of  the  subject-matter  to  be  named  in  such  instru- 
ment, shall  be  rendered  upon  the  award  made  pursuant  to  such 
submission." 

The  first  section  of  the  act,  as  we  have  seen  srtpra,  relates 
exclusively  to  pending  suits,  in  which  class  of  cases  the  court 
has  authority  to  enter  an  order  submitting  the  matter  involved 
to  three  arbitrators.  Section  sixteen,  above  quoted,  relates 
exclusively  to  controversies  not  in  suit.  Under  section  one, 
the  court  has  no  authority  to  order  a  submission  to  one  arbi- 
trator, or  to  any  greater  or  less  number  than  three;  nor  has 
the  court  authority  to  make  an  order  of  submission  in  respect 
to  any  matter  not  involved  in  a  suit  pending.  Under  section 
sixteen,  parties  may  submit  controversies  between  them  to  anv 
number  of  arbitrators  mutually  agreed  upon,  but  to  entitle 
them  tx>  have  a  judgment  rendered  upon  the  award,  it  must 
affirmatively  appear  that  the  submission  was  of  matters  not  in 
suit.     Unless  this  appears  in  the  articles  of  submission,  the 


596  AEBITRATION   AND   AWARD. 

court  is  without  jurisdiction  to  enter  judgment  and  the  party 
is  left  to  his  remedy  independent  of  the  statute.'  The  juris- 
diction of  the  court  in  such  cases  is  conferred  exclusively  by 
the  statute,  and  the  statute  must  be  strictly  construed.^  But 
the  statute  does  not  abridge  the  common  law  right  of  parties 
to  adjust  their  differences  by  arbitration.^ 

Proceedings  under  section  16. — Section  17  of  the  same 
statute  provides  that  "  upon  a  submission  under  the  foregoing 
section,  the  arbitrators  shall  take  the  same  oath,  and  may 
compel  the  attendance  of  witnesses,  and  shall  proceed  in  the 
same  manner  as  if  the  submission  had  been  made  in  a  cause  of 
pleading." 

A  provision  in  a  lease  for  appointment  of  persons  to  fix  the 
rent  to  be  thereafter  paid,  is  not  a  submission  to  arbitration  so 
as  to  require  notice  to  the  parties  of  the  time  and  place  of  the 
meeting  of  the  appraisers.* 

Award  under  section  16. — It  is  provided  in  section  18  that 
"  the  award  and  instrument  of  submission  may  be  filed  in  a 
court  of  record  of  competent  jurisdiction,  within  the  same 
time  and  upon  like  conditions,  and  notice  and  proceedings  had 
thereunder,  and  judgment  entered,  the  same  as  if  the  award 
had  been  made  in  a  suit  pending  in  such  court.^ 

II.       COMMON  LAW  SUBMISSION. 

Common  law  submissions  differ  from  statutory  submissions, 
in  that  they  are  dependent  entirely  upon  the  agreement  of 
the  parties,  and  have  no  validity  if  either  withdraws  his  as- 
sent before  an  award  is  made,  and  in  that  the  award  merely 
has  the  force  of  a  debt  in  favor  of  the  person  in  whose  favor 
it  is  made,  against  the  other  party,  and  can  only  be  en- 
forced by  an  action  at  law  thereon,  or  by  application  to  a  court 

'  Martine  v.  Harvey,  12  Brad.  587;  *  Norton  v.  Gale,  95  111.  533:  Stose 

Lou-e  V.  Nolte,  15  111.  368.  v.  Heissler,  120  111.  433;  Pearson  v, 

2  Lowev.  Nolte,  15  111.  368;  Ham-  Sanderson,  128  lU.  88;  S.  C .,  28  111. 
ilton  V.  Hamilton,  27  111.  158;  Ran-  App.  571, 

kin\.  Rankin,  36  111.  293;  Martine  ^Rev.  Stat.  (1893),  165;    Rev.  Stat. 

V.  Harvey,  12  Bradw.  587.  (1895),  168;  1    Starr  &    Curtis  306; 

3  Smith  V.  Douglas,  16  111.  34;  see  Seaton  v.  Kendall,  61  111.  App.  289. 
Coimivall  V.  March,  Breese  295  ;    R. 

R.  Co.  V.  Alfred,  3  Bradw.  511. 


ARBITRATION    AND    AWA..^.  597 

of  chancery  for  a  specific  performance.  But,  while  a  common 
law  award  is  not  a  judgment  in  the  strict  sense  of  the  word, 
and  can  not  be  enforced  as  such,  yet  it  possesses  many  of  the 
attributes  of  a  judgment,  and  in  many  cases  reaches  further, 
and  more  effectually  settles  controversies  between  parties  than 
would  a  judgment  of  a  court  of  law.  A  court  of  law  can 
only  conclude  the  parties  as  to  matters  set  forth  in  the  decla- 
ration under  which  the  judgment  is  rendered,  and  only  their 
legal  rights,  leaving  all  equitable  rights  still  open  for  adjust- 
ment. But  an  award  reaches  out  and  embraces  and  settles  all 
the  rights  of  the  parties  as  to  the  matters  submitted,  Ijoth 
legal  and  equitable,  and  forever  settles  all  controversies  per- 
taining thereto,  so  that  no  other  human  tribunal,  as  between 
the  parties  thereto,  and  their  privies,  can  ever  re-adjudicate 
them,  unless  the  award  is  first  set  aside  upon  the  ground  of 
fraud,  misconduct  or  mistake.' 

How  submitted. — At  the  common  law,  a  submission  may 
be  made  either  in  writing  or  by  parol,  by  the  agreement  of 
the  parties,  and  an  award  made  in  pursuance  of  a  parol  sub- 
mission is  as  binding  upon  the  parties  as  one  made  in  writing,^ 
But  where  a  writing  is  required  to  pass  the  thing  in  contest, 
such  as  disputes  concerning  real  estate,  the  submission  and 
award  must  be  in  writing;  in  all  other  cases  a  verbal  submis- 
sion and  award  will  effectually  conclude  the  parties.^  But 
even  if  the  rule  were  otherwise,  relative  to  submissions  relat- 
ing to  land,  such  submission  would  be  void  under  the  statute 
of  frauds.* 

It  is  held  that  matters  relating  to  the  price  of  land  may  be 
submitted  by  parol;'  and  it  has  been  held  in  Pennsylvania,  that 
a  parol  submission  as  to  a  boundary  line  is  valid."     And  so  is 

^Rogers  v.  Holden,    13    111.    293;  Titus  v.  Scantling,    4    Blackf.   89 

Hadaimy  v.  Kelly,  78  111.  286;    Oer-  Shockley  v.  Glasford,   6  Dana  90 

risk  V.  Ayres,^  Scam.  2^5;   Wmkler  Martin    v.    Chajmian,   1   Ala.    278 

V.    Beck,   2  Scam.  488;    Kimball  v.  French  v.  New,  28  N.  Y.  147. 

Walker,  30  111.  482;  Tucker  v.  Page,  *Stark  v.  Cannaday,   3  Litt.  399; 

69  111.  180:  6  Wait's  Ac.  &  Def.  506.  Philbrick  v.  Preble,  18  Me.  255;  Nor- 

^  Phelps  V.  Dolan.  75  111.  90;  Koons  ton  v.  Gale,  95  111.  533. 

V.  Hollingsworth,  97  111.  52.  ^  Davey  v.  Farr,  7  Cranch  (U.  S.) 

^  Smith  V.  Douglas,  16  111.  34;  Val-  172. 

entine  v.  Valentitie,  2  Barh.  Ch.  ^30;  *  Bowen  v.   Cooper,   7  Watts   11; 


598  ARBITRATION    AND    AWARD. 

a  parol  submission  as  to  damages  growing  out  of  a  contract 
relating  to  land/  if  the  contract  itself  is  valid.  Where  the 
submission  is  by  parol,  it  is  material  to  prove,  not  only  that 
both  parties  promised  to  abide  by  the  award,  but  that  the  prom- 
ises were  concurrent  and  mutual,  for  otherwise  each  promise  is 
but  nudum  pactum.^ 

Revocation. — All  common  law  submissions  to  arbitration, 
whether  by  parol,  in  writing,  or  by  deeds,  are  revocable,  even 
though  the  parties  expressly  agree  that  they  shall  not  be.  No 
stipulation  in  such  agreements  will  be  sustained,  either  at  law 
or  in  equity,  which  deprives  parties  from  having  recourse  to 
courts  of  justice  to  settle  their  differences,  if  they  so  elect; 
consequent!}'',  independent  of  some  statutory  restrictions,  an 
ag-reement  of  this  character  can  not  be  made  irrevocable:  ^  and 
this  right  may  be  exercised  at  any  time  before  the  award  is 
actually  made;  *  and  by  such  revocation  annul  all  contracts 
relative  to  the  submission,  and  leave  the  other  party  to  rest 
entirely  upon  the  penalty  of  the  bond,  if  there  is  one,  or  their 
remedy  upon  the  case,  if  no  bond  was  entered  into.* 

The  institution  of  a  suit  by  one  party  before  the  award  has 
been  made,  the  cause  of  action  being  the  subject-matter  of  the 
arbitration,  will  operate  to  revoke,  by  implication,  the  agree- 
ment to  arbitrate.' 

After  an  award  is  made  and  published,  neither  party  can 
revoke  the  submission  without  the  consent  of  the  other.'  If 
the  submission  is  by  parol,  it  may  be  revoked  by  parol,  but 

see  also  Orr  v.  Hadley,  36  N.  H.  875;  v.  Manski,  136  111.  72,  same  case,  24 

Stewart  v.  Cass,  16  Vt.  663.  111.  App.  105. 

*  Carson  V.  £arZ?/u'in€,  14  Ind.  256.  ^  Pond  v.   Harris,  113  Mass.  114; 
^Ingraliam  v.  Whitmore,   75  111.  Aspinwallv,  Tousey,  2  Tyler    (Vt.) 

24;  Keep  v.  Goodrich,  12  Johns.  397;  328;  Miller  v.  Canal  Co.,  53  Barb. 

2Greenl.  Ev.,  Sec.  73;     Kingston  v.  590;  Craftsburg  v.  Hill,  28  Vt.  763; 

Phelps,  Peake's  Cases  227.  Brown  v.  Leavitt,  26  Me.  251. 

^Frink  v.   Ryan,    3    Scam.    322;  ^Peters   v.    Craig,  6    Dana  307, 

Marsh  v.  Packer,  20  Vt.  198;  Davis  Morse  on  Arbitration,  236;  Paulsen 

V.  Maxwell,  27  Geo.    368;    Tobey  v.  v.  Manski,  24  III.  App.   105;   same 

County,  3  Story  (U.  S.;  800.  case,  126  111.  72. 

*  Leonard  v.  House,  15  Geo.  473;  '  Marsh  v.  Packer,  20  Vt.  198; 
Allen  V.Watson,  16  John.  205;  Bray  Clement  v.  Hadlock,  13  N.  H.  185; 
V.  English,  1  Conn.  498;  Aspinwall  Eastman  v.  Armstrong,  26  111.  216. 
v.roiisej^,  2„Tyler(Vt)328;  PawZsen  .             > 


ARBITRATION    AND    AWARD.  599 

the  party  must  give  distinct  notice  of  revocation.'  A  sub- 
mission in  writing  can  only  be  revoked  in  writing; '  and  where 
the  submission  is  under  seal,  it  has  been  held  that  the  revoca- 
tion must  also  be  under  seal; '  and  it  has  been  held  that  a 
parol  agreement  between  the  parties  to  waive  and  abandon  an 
award,  made  under  a  submission  under  seal,  can  not  be  pleaded 
in  bar  to  an  action  on  the  bond.* 

If  the  submission  is  made  by  one  party  on  one  side,  and  two 
on  the  other,  one  of  the  two  can  not  revoke  it  without  the 
assent  of  the  other.* 

The  death  of  one  of  the  parties  to  the  submission  operates 
as  a  revocation,  jper  se,  unless  otherwise  expressly  provided  in 
the  articles  of  submission.^  If  either  of  the  arbitrators  refuses 
to  act,  the  submission  becomes  abortive,  and  both  parties  are  re- 
leased therefrom,'  unless  provision  is  made  for  such  a  contin- 
gency by  agreeing  upon  a  substitute.* 

Who  may  be  arbitrators.— The  parties  knowing  the  facts 
may  submit  their  differences  to  any  person,  whether  he  is  in- 
terested in  the  matters  involved,*  or  is  related  to  one  of  the 
parties,  and  the  award  will  be  binding  upon  them;  and  where 
knowledge  of  such  facts  comes  to  a  party  after  the  submis- 
sion is  made,  but  while  there  is  still  power  to  revoke,  if  he 
neglects  to  revoke  the  submission,  but  permits  the  award  to 
be  made,  he  is  treated  as  having  waived  the  objection,  and  is 

■1  Bac.  Abr.  306;A'e?/esv.  Fulton,  Bailey  v.  Stewart,  3  W.   &  S.  560 

42  Vt.  159.  Dexter    v.    Young,    40    N.    H.  130 

^McFarlane\.  Cushman,2\  Wis.  Whitfield  v.  Whitfield,   8  Ired.    L, 

401;    Midlins  v.    Arnold,   4  Sneed  163;  Tyson  v.  Robinson,  ^lved.Z'3,2 

262;  Evans  v.  Cheek,  3  Hayw.  42;  Marseilles  v.  Kenton,  17  Pa.  St.  238, 

Antwerp  v.   Stewart,  8  Johns.  125;  ^  Wooley  v.  Clark,  2  D.  &   R.  158 

but  see  Paulsen  v.  Manski,  24  111.  Blundell  v.    Brettargh,  17  Ves.  Jr. 

App.  105.  242;  see  Church  v.  Hearson,  41   III. 

^  Brown  v.  LeanDitt,  26  Me.   251;  App.  89. 

Wallis  V.  Carpenter,  13  Allen  19.  «  Wilson  v.  Cross,  7  Watts  (Penn.) 

*Braddick  v.  Thompson,  8   East  495;  Binsse  v.  Wood,  47  Barb.  624- 

344.  Woodbury  v.  Procter,  9  Gray  18. 

^Robertson  v,  McNeil,  12  Wend.  ^ JVav.  Co.  v.  Fenlon,  4  W.  &  S. 

578;  1  Bac.  Abr.  308.  (Penn.)  205;  see  Ben.  Ass'n  v.  Rob- 

^  Melntire  v.  Morris,  14  Wend.  90;  inson,  147  111.  109. 
Potoer  V.  Poufer,  7  Watts  (Pa.)  205; 


600  ARBITRATION   AND   AWARD. 

bound  by  the  award.'     But  if  the  facts  were  unknown  to  one 
of  the  parties,  the  objection  woukl  be  fatal  to  the  award.^ 

General  powers  and  duties. — There  is  a  broad  distinction 
between  the  powers  of  arbitrators  under  a  common  law  submis- 
sion, and  those  appointed  under  the  statute;  and  this  distinction 
must  not  be  overlooked.  In  a  common  law  submission,  the 
arbitrators  are  not  required  to  be  sworn,  nor  are  they  bound 
to  conform  to  the  rules  of  law  or  equity  in  the  admission  of 
evidence;  or  in  arriving  at  the  result.  So  long  as  they  keep 
within  the  limits  of  the  submission,  and  do  not  act  corruptly, 
and  there  is  no  fraud  or  evident  mistake,  their  decision  is  con- 
clusive." They  have  the  power  to  decide  upon  both  the  law 
and  the  facts  and  neither  party  can  complain  that  they  have 
made  a  mistake  in  either  respect.*  They  are  at  liberty  to 
decide  according  to  equity  and  good  conscience,  irrespective 
of  the  rules  of  law;  ^  and  in  a  case  where  an  action  of  slander 
was  submitted,  and  the  arbitrators  awarded  damages  for 
words  not  actionable,  the  court  refused  to  interfere;  *  and  the 
rule  generally  is,  both  at  law  and  in  equity,  that  arbitrators 
are  clothed  with  authority  to  decide  the  questions  submitted 
to  them,  and  that,  if  their  authority  has  been  fairly  and  im- 
partially exercised,  their  decision  can  not  be  revised.  To  war- 
rant the  court  in  reviewing  their  action  upon  the  merits, 
something  more  than  error  of  law  or  of  judgment  as  to  the 
facts  must  be  established.  It  must  appear  either  that  they 
have  transcended  their  powers,  or  have  committed  a  mistake 
so  gross  and  palpable  as  to  evince  partiality,  corruption  or 
grave  misconduct,^  resulting  in  an  injury  to  the  party  seeking 

1  Davis  V.  Forshee,  35  Al.  107.  ^  Bliss  v.  Rollins,  6  Vt.  529. 

'^  Brown    v.   Leavitt,   26  Me.  251;  ^  Shepard  v.  Watrous,  3  Cai.  (N. 

Hicks  V.  McDonnell,  99  Mass.  459.  Y.)  166. 

3  Brown  v.   Bellows,  4  Pick.  179;  ^  Wynn  v.    Bellas,  34  Penn.    160; 

Todd  V.  Barlow,  2  Johns.  Ch.  551;  Perkins  v.  Giles,  5S  Barb.  342;  Wade 

Golden  v.  Mueller,  23  111.  App.   527.  v.  Powell,  31  Ga.  1 ;  Mulder  v.  Cra- 

*Mitchell  V.  DeSckaamps,  13  Rich.  vat,  2  Bay  (S.  C.)  370;  Bennett  v.  Rus- 

9;  R.  R.  Co.  V.  Scruggs,  50  Miss.  285;  sell,  34  Mo.  524;  Goldsmith  v.  Tilley 

Micklesv.  Thayer,  lAAWenlU;  Mfg.  1  H.  &  J.  (Md.)  361;  Bell  v.  Price, 

Co.  V.  Fox,  18  Maine,  117:  Crabtree  22N.  J.  L.  578;  iVheatley  v. Martin,  Q 

V.  Given,  8  Geo.  8;  Conrad  v.  John-  Leigh  (Va.)  Q2;  Ashley  v.  Thomas, 

son,  20  Ind.  421.  1'''  Texas   220;   Browni  v.  Green,   7 


ARBITKATION    AND    AWARD.  601 

to  avoid  their  action; '  as  a  party  benefited  by  a  mistake  has 
no  reason  to  complain.^ 

Recommitting  award. — Under  a  common  law  submission, 
the  courts  have  no  power  to  recommit  an  award  to  the  arbi- 
trators for  correction  or  reconsideration,  or  for  any  purpose. 
When  arbitrators  have  once  executed  their  powers,  by  making 
and  returning  an  award,  their  powers  expire  and  are  forever 
gone,  without  the  express  consent  of  both  parties  to  recommit 
the  matters  in  contest  to  them  a^ain.^ 

The  right  of  the  court  to  remit  a  cause  decided  by  arbitra- 
tor to  them  again,  without  the  consent  of  the  parties,  has  no 
more  foundation  than  the  right  to  send  a  cause  to  arbitration 
in  the  first  instance,  without  their  consent.  Great  injustice 
might  be  done  in  such  cases,  as  in  the  interval,  one  party  may 
have  discovered  that  his  rights  were  not  safe  with  the  arbitra- 
tors— that  they  were  prejudiced,  corrupter  incompetent.* 

When  an  award  has  been  set  aside,  the  court  will  proceed 
with  the  case  as  if  it  had  never  been  referred.* 

III.       FORMS    FOR    SUBMISSIONS   TO   ARBITRATORS. 

No.  310.    Agreement  to  submit,  suit  jiending. 

In  the Circuit  Court. 

Term,  A.  D.  18—. 

A.  B.     ) 

vs.       >•     In  an  action  of . 

C.  D.     ) 

Know  all  men  by  these  presents:  That  we,  the  above  named  plaintiff 
and  defendant,  do  hereby  mutually  agree  to  submit  the  matter  involved  in 
the  above  entitled  cause  to  the  decision  and  award  (*)  of  E.  F. ,  G.  H.  and 

Conn.  536;  Bridgman  v.  Bridgman,  ^  Russell  on  Arbitrators,  Sec.  8,  p. 

23  Mo.    272;  Ins.  Co,  v.  Hamilton,  ^Gl; Fitzgerald \\  Fitzgercdd,B.axdin 

48  111.  App.  593.  (Ky.)  228;  French  v.  Mosely,  1  Litt. 

'  Daniels  v.   Willis,  7  Minn.  374;  (Ky.)  248;   Lansdale  v.  Kendall,  4 

Pomeroy  v.  Kibbee,  2  Root  (Conn.)  Dana  (Ky.)  613;   Aldrich  v.   Jessi- 

92;     Tomlinson    v.     Hammond,    8  vian,   8  N.   H.   516;  B.   R.    Co.   v. 

Iowa  40.  Bradley,  7  Ind.  53;  Doke  v.  James, 

"  Galvin  v.  Thompson,  18  Me.  367;  4  Comst.    575;  Smith  v.  Smith,   28 

Lymanv.  Arms,  5  Pick.  213;  Macon  111.  59, 

V.  Crump,  1  CaU  (Va.)  575;   Brad-  *  Smith  v.  Smith.  28  111.  59. 

Shaw  v.   Docks,  12    Q.    B.    562;    6  "Smith  v.  Smith,  28  111.  59. 
Wait's  Ac.  and  Defs.  519. 


602'  ARBITRATION    AND    AWARD. 

J.  K.,  as  arbitrators,  pursuant  to    section  1,  chapter  10  of  the  Revised 

Statutes  of  this  State. 

Dated  this of ,  A,  D.  18—. 

A.  B.,  Plaintiff, 

C.  D.,  Defendant. 

No.  311.    Agreement  to  submit  mit  pending,  each  party  selecting  one  arbi- 
trator, and  tlie  court  tlie  third. 

(Commence  as  in  the  last  form  to  tlie  (*)  and  tlien  proceed:)  of  E.  F.  and  G. 
H.,  selected  by  said  parties,  and  agree  that  the  court  may  name  the  third  ar- 
bitrator, pursuant  to  section  1  of  chapter  10  of  the  Revised  Statutes  of  this 
State. 


Dated,  etc. 


A.  B.,  Plaintiff, 
C.  D.,  Defendant. 


No.  312.     Order  referring  suit  pending  to  arbitrators. 

(Title  of  cause.) 

Upon  the  agreement  of  the  parties  hereto,  it  is  ordered  that  this  cause 
and  the  matters  involved  therein,be,  and  the  same  is  hereby  submitted  to 
tlie  decision  of  E.  F.,  G.  H.  and  J.  K.,  as  arbitrators,  agreed  upon  by  the 
parties  respectively,  in  pursuance  to  the  statute  in  such  case  made  and 
provided. 

No.  313.    Oath  of  arbitrators. 

(Ventie,  and  title  of  cause  as  in  No.  310,  ante.) 

We,  the  undersigned,  to  vs^hom  the  matter  in  controversy  involved  in  the 
above  entitletl  cause  was  submitted  by  the  court,  as  arbitrators,  each  of 
us»  on  oath  state  that  we,  and  each  of  us,  will  faithfully  hear,  examine  and 
determine  the  cause,  according  to  the  principles  of  equity  and  justice;  and 
will  make  a  just  and  true  award,  according  to  the  best  of  our  understand- 
ing, so  help  us  God. 

E.  F. 

G.H. 
J.  K. 

Subscribed  and  sworn,  etc. 

No.  314.    Atixird  in  suit  pending. 

(Vemte,  and  title  of  cause  as  in  No.  310,  ante.) 

To  all  to  whom  these  presents  shall  come,  or  concern,  be  it  known  and 
published : 

That  we,  the  undersigned,  to  whom  the  matters  involved  in  the'  above 
entitled  cause  were  submitted,  by  the  order  of  the  court,  therein,  as  arbi- 
trators, do  declare  and  publish  that  we,  after  being  each  sworn,  as  re- 
quired by  the  statute,  to  faithfully  hear,  examine  and  determine  the  said 
cause,  aiccording  to  the  principles  of  equity  and  justice,  and  to  make  a  just 
and  true  award  according  to  the  best  of  our  understanding,  and  having  ap- 
pointed a  place  and  time  for  the  hearing  of  said  cause,  and  having  given 


ARBITRATION    AND    AWARD.  603 

tlie  said  parties,  respectively,  notice  of  the  place  and  time  of  such  hearing, 
and  having  been  attended  by  said  parties,  or  their  respective  attorneys,  and 
having  heard  the  proofs  and  allegations  of  the  parties,  and  examined  the 
matters  in  controversy  in  said  cause,  and  being  fully  advised  in  relation 
thereto,  do  make  and  publish  this,  our  award,  in  writing. 
That,  etc.     {Here  insert  tlie  viatters  determined  and  awarded.) 

In  witness  whereof  we  have  hereunto  subscribed  our  names,  this 

day  of ,  A.  D.  18—. 

E.  F.,  G.  H.  and  J.  K., 
Arbitrators. 

No.  315.    Agreement  of  submvision  of  a  controversy  not  in  suit.   (Statutory 

under  section  16.) 

Know  all  men  by  these  presents:  That  whereas  a  controversy  is  now  ex- 
isting and  pending,  but  not  in  suit,  between  us,  the  undersigned,  in  rela- 
tion to  {here  state  tJienature  of  the  controversy.) 

That  we,  the  undersigned,  do  hereby  submit  to  E.  F.,  of,  etc.,  {or  E.  F., 
G.  H.  and  J.  K.,  of,  etc.,)  as  arbitrator,  {or  arbitrators,)  the  said  matter  of 
controversy  existing  between  us;  and  we  do  hereby  further  agree  that  a 
judgment  of  any  court  of  record,  competent  to  have  jurisdiction  of  the  sub- 
ject-matter of  said  controvei-sy,  may  be  rendered  upon  the  award  made  pur- 
suant to  this  submission,  in  pursuance  of  the  statute  in  such  case  made 
and  provided. 

Dated,  etc. 

A.  B. 
C.  D. 

No.  316.    Award  in  a  controversy  not  in  suit.     {Statutory  in  section  16.) 

To  all  to  whom  these  presents  shall  come,  or  may  concern,  be  it  known 
and  published: 

That  I,  E.  F.,  {or  we,  E.  F.,  G.  H.  and  J.  K.,)  arbitrator,  {or  arbitrators) 
to  whom  the  matter  in  controversy  existing  between  A.  B.  and  CD.,  not 
m  suit,  was  submitted,  do  declare  and  publish,  that  I,  {or  we)  after  being 
sworn,  as  required  by  the  statute,  to  faithfully  hear,  examine  and  deter- 
mine the  said  cause,  according  to  the  principles  of  equity  and  justice,  and 
to  make  a  just  and  true  award  according  to  the  best  of  my  {or  our)  under- 
standing, and  having  appointed  a  place  and  time  for  the  hearing  of  said 
cause,  and  having  given  the  said  parties,  respectively,  notice  of  the  place 
and  time  of  such  hearing,  and  having  been  attended  by  said  parties,  or  their 
respective  attorneys,  and  having  heard  the  proofs  and  allegations  of  the 
parties,  and  having  examined  the  matters  in  controversy  in  said  cause,  and 
being  fully  advised  in  relation  thereto,  do  make  and  publish  this,  my  {or 
o«r)  award,  in  writing,  that  is  to  say:  • 

That,  etc.     {Here  insert  the  matters  determined  and  auxirded.) 

In  witness  whereof,  I  {or  ux")  have  hereunto  subscribed  my  name,  (or  our 
nnines)  this day  of ,  A.  D.  18  — . 

{Signed  by  arbitrator  or  arbitrators.)  ; 


604  ARBITRATION    AND    AWARD. 

No.  317.     General  agreement  for  submission  of  all  matters  in  controversy. 

{Common  lau\) 

KnoTT  all  men  by  these  presents:  That  whereas  differences  and  contro- 
versies now  exist  and  are  pending  between  the  undersigned,  A.  B.  of,  etc, 
and  C.  D.  of,  etc.,  in  relation  to  divers  subjects  of  controversy  and  dispute; 

Therefore,  we,  the  undersigned,  do  hereby  submit  said  differences  to  the 
arbitrament  of  E.  F.,  G.  H.  and  J.  K.,  or  to  any  two  of  them,  to  arbi- 
trate, determine  and  award,  of  and  concerning  all  manner  of  actions, 
suits,  bills,  bonds,  specialties,  controveries.  trespasses,  damages,  debts, 
claims,  demands,  and  all  and  every  other  subject  of  differences  whatso- 
ever, at  any  time  heretofore  had,  possessed,  instituted,  prosecuted,  made, 
began,  pending,  existing,  done,  or  suffered  to  be  done,  committed,  or  pend- 
ing, by  and  between  us,  directly  or  ind.rectly. 

That  the  said  award  shall  be  made  in  writing,  under  the  hands  of  the 
said  named  arbitrators,  or  any  two  of  them,  ready  to  be  delivered  to  us,  the 
said  parties,  or  such  of  us  as  may  desire  the  same,  on  or  before,  etc. 

That  the  said  award,  when  made,  shall  in  all  things  by  us,  and  each  of 
us,  be  well  and  faithfully  kept,  observed  and  performed. 

Witness  our  hands  {and  seals)  this day  of A.  D.  18  — . 

A.  B.     [seal.] 

C.  D.      [SEAL.] 

No.  SIS.    Agreement  of  subinission  of  particular  mntter  in  controversy. 

{Common  law.) 

Know  all  men  bj'  these  presents:  That  whereas  divei-s  disputes  and  con- 
troversies have  arisen  and  are  now  depending  between  the  undersigned,  A. 
B.  of.  etc.,  and  C.  D,  of,  etc.,  touching  and  concerning  {state  the  matter  in 
controversy.) 

That  for  the  determination  and  ending  of  the  said  controversies,  it  is 
hereby  mutually  agreed  by  and  between  the  said  parties,  that  all  matters 
in  controversy  between  them,  touching  and  concerning  all  and  every  matter 
and  thing  above  mentioned  and  specified,  shall  be  referred  and  submitted  to 
the  arbitrament  and  determination  of  E.  F.  {or  E.  F.,  G.  H.  and  J.  K.,  or 
any  two  'of  them). 

That  the  said  award  shall  be  made  in  w^riting,  under  the  hand  of  said 
arbitrator  {or  under  the  hands  of  said  arbitrators,  or  any  two  of  them,) 
ready  to  be  delivered  to  said  parties,  or  such  of  them  as  shall  desire  the 
same,  on  or  before  the day  of ,  A.  D.  18 — . 

That  the  said  award  when  so  made  shall  in  all  things  by  us  and  each  of 
us  be  well  and  faithfully  kept,  observed  and  performed. 

{To  be  signed  by  the  parties.) 

The  parties  may  agree  that  each  shall  give  a  bond  to  the 
other  for  the  faithful  compliance  with  the  award  of  the  arbi- 
trators. In  such  case  the  following  form  of  such  bond  may 
be  used : 


AKBITKATION   AND    AWARD.  605 

No.  319.    Arbitration  bond,  to  be  given  by  each  party  to  the  other. 

Know  all  men  by  these  pr&sents  :    That  I,  (.4.  B.  or  C.  D.)of,  etc.,   am 

held  and  firmly  bound  unto  (C.  D.  or  A.  B.)  in  the  sum  of dollars,  for 

the  payment  of  which  I  bind  myself,  and  legal  representatives,  by  tliese 
presents. 

The  condition  of  the  above  obligation  is  such,  that  if  the  above  bounden 
{A.  B.  or  C.  D.),  or  his  legal  representatives  shall  submit,  perform,  and 
comply  with  the  determination  and  award  of  E.  F,,  G.  H.  and  J.  K.,  the 
arbitrators  named  and  selected  by  said  parties  to  determine  and  award  of 
and  concerning  Qiere  describe  the  matter  submitted),  in  accordance  with 
the  terms  of  submission  agreed  upon  between  said  parties,  of  even  date  here- 
with, then  this  obUgation  shall  be  void,  otherwise  to  be,  and  remain  in  full 
force  and  effect. 

Witness  my  hand  and  seal  this day  of ,  A.  D.  18 — . 

{To  be  signed  by  the  party  executing  the  bond.) 

No.  320,     Award,  on  common  laiv  s2d)mission,  by  single  arbitrator. 

Know  all  men  by  these  presents:  That  by  an  agreement  of  submission, 
bearing  date,  on,  etc.,  the  matters  in  difference,  etc.,  between  A.  B.  and  C. 
D. ,  were  by  them  submitted  to  the  consideration  of  the  under? igned,  arbi- 
trator, to  hear,  determine,  and  award  concerning  the  same. 

That  by  virtue  of  said  agreement  of  submission,  and  after  having  given 
the  said  parties,  respectively,  due  notice  of  the  time  and  place  of  said  hear- 
ing, and  after  hearing  the  proofs  and  allegations  of  the  respective  parties, 
and  examining  the  subject  in  controversy  between  them,  I  do  determine 
and  award  as  follows  : 

That,  etc.     (Here  set  out  the  matters  determined  and  airarded.) 

Witness  my  hand  {a7id  seal)  this daj-  of ,  A.  D.  18 — . 

E.  F.,  [SEAL.] 

Arbitrator. 

No.  321.    Award,  on  common  law  submission,  by  three,  or  more,  or  less, 

arbitrators. 

To  all  to  whom  these  presents  shall  come,  or  concern,  be  it  known  and 
published: 

That  we,.E.  F.,  G.  H.  and  J.  K.,  arbitrators,  to  whom  were  submitted  the 
matters  in  controversy  existing  between  A.  B.  and  C.  D.,  as  by  agreement 
of  submission,  bearing  date  on,  etc.,  more  fully  appears. 

That  we,  tlie  said  arbitrators,  after  having  appointed  a  time  and  place 
for  the  hearing  of  said  matters, and  after  having  given  due  notice  thereof  t<} 
the  respective  parties,  and  having  heard  the  proofs  and  allegations  of  the 
parties,  and  examined  the  matters  in  controversy  submitted,  do  make,  de- 
clare and  publish  the  following  award  and  determination  concerning  the 
same,  to  wit: 

That,  etc.     {Here  insert  the  matters  awarded  and  determined.) 

In  witness  whereof,  we  have  hereunto  set  our  hands(a/icZ  seals)  this • 

day  of ,  A.  D.  18—. 

E.  F.,  G.  H.  and  C.  D.,     [seals.] 
Arbitrators. 


CHAPTEE  XX. 

CONFESSION  OF  JUDGMENT. 

In  Illinois. —  The  statute  of  Illinois  provides  as  follows : 
"  Anv  person  for  a  debt  honafide  due,  may  confess  judgment 
by  himself,  or  attorney  duly  authorized,  either  in  term  or  va- 
cation, without  process.  Judgments  entered  in  vacation  shall 
have  like  force  and  effect,  and  from  the  date  thereof  become 
liens, in  like  manner  and  extent  as  judgments  entered  in  term." ' 

Practice. — The  established  practice,  in  Illinois,  in  cases  of 
confession  of  judgment  in  courts  of  record,  is  to  file  a  declara- 
tion on  the  cause  of  action,  a  warrant  of  attorney  (usually 
accompanying  a  promissory  note)  with  an  affidavit  proving  it, 
and  a  plea  of  confession,  or  cognovit^ 

The  declaration. — The  declaration  should  correspond  with 
the  nature  of  the  action,  and  may  be  taken  from  the  prece- 
dents already  given.  It  is  not  essential,  but  according  to  the 
practice,  to  tile  a  declaration  on  a  confession  of  judgment.^ 

Warrant  of  attorney. — A  warrant  of  attorney  to  confess 
judo-ment  for  a  debt,  authorizes  the  attorney  therein  named  to 
appear  for  the  defendant  and  receive  a  declaration  in  an  action 
for  the  debt,  and  to  confess  the  action,  or  suffer  judgment  by 
nil  dicit,  or  otherwise,  to  pass,* 

The  doctrine  is  well  settled  that  a  power  to  confess  a  judg- 
ment must  be  clearly  given  and  strictly  pursued,  or  the  judg- 
ment will  not  be  sustained.*    But  the  rule  has  its  reasonable 

» 2  Starr  &  Curtis,  1828;  Rev,  Stat,  *  French  v.  Miller,  126  111.  611. 

(1893)  1079:    Rev.   Stat.  (1895)   1163;  *  Campbell  v.    Ooddard,    117  111, 

see  Atwater  v,  Barik,  152  111.  605.  251;  Frye  v.  Jones,  78  111.  632;  Keith 

«  See  Roundy  v.  Hunt,  24  111.  598;  v.    Kellogg.  97  III.  147;    Gardner  v, 

Iglehart  v,  Morris,  34  111.  501 ;  Bush  Bunn,  132  111.  403;,  Poppers  v. Meager, 

v.  Hanson,  70  111.  480;  Stein  v.  Good,  33  111.  App.  19;  Roundy  v.  Hunt,  24 

16   111.  App.  516;  Tucker  v.   Gill,  61  111.  598;  Tucker  v.  Gill,  61  111.    236; 

111,  236:  Martin  v.  Judd,  60  111.  78.  Chase  v.  Dana,  44  III.  262;  Matzen- 

^  Russell  v.Lillja,  90  111.  327.  baugh  v.  Doyle,  56  111,  App.  343, 

(606) 


CONFESSION    OF    JUDGMENT.  ^07 

limitations  and  must  not  be  applied  with  such  strictness  as  to 
defeat  the  obvious  intention  of  the  party  granting  the  power.' 

Proof  of  the  execution  of  the  warrant  of  attorney  is  juris- 
dictional, and  can  not  be  dispensed  with.  Where  the  confes- 
sion is  taken  in  vacation,  an  affidavit  of  the  execution  must  be 
filed.''  The  warrant  of  attorney  is  usually  attached  to  the  note, 
or  other  evidence  of  debt,  upon  which  the  confession  is  to  be 
taken.  Although  it  is  usual  to  affix  a  seal  to  the  warrant  of 
attorney,  it  is  not  necessary  to  do  so.' 

The  proof  or  the  warrant,  etc.,  when  the  judgment  is  con- 
fessed in  open  court,  may  be  made  orally,  but  it  is  usual  and 
preferable  even  in  term,  and  necessary  in  vacation,  to  make 
such  proof  by  affidavit,  which  may  be  as  follows: 

No.  S22.    Proof  of  warrant  of  attotmey,  etc. 

State  of  Illinois,  ) 

County  of )      set. 

E.  F.  of,  etc.,  makes  oath  and  says,  that  he  knows  C.  D.,  whose  name  is 
subscribed  to  the  promissory  note  and  warrant  of  attorney  hereto  annexed, 
(*)  and  was  present  and  saw  him  sign  tlie  said  note  and  warrant,  on  or 
about  the  day  the  same  bears  date. 

Subscribed  and  sworn,  etc,  E.  F. 

If  the  proof  is  only  as  to  the  handwriting,  then  instead  of 
the  words  following  the  asterisk  in  the  above  form,  say : 

"  And  has  seen  him  write,  and  is  acquainted  with  his  handwriting;  and 
that  the  signatures,  purporting  to  be  his,  to  the  said  note  and  warrant,  are 
in  the  handwriting  of  the  said  C.  D." 

The  cognovit. — A  cognovit  containing  the  words  "  I  can 
not  deny "  is  sufficient  to  authorize  the  clerk  to  enter  up  a 
judgment.* 

Where  the  name  of  an  attorney  is  signed  to  a  cognovit  by 

'  Holmes  y.  Parker,  125  111.  478.  Oppenheimer  v.  Giershafer,  54  III. 

2  Stein  V.  Good,  115  111.  93;  Gard-  App.  38. 

ner  v.  Bunn,  132   111.   403;  Durham  ^  Truett  v.  Waimanght  ,4  Gilm. 

V.   Broivn,   24  111.    93;    Roundy  v.  411;    Tidd's    Pr.  546;    see    SIoo  v. 

Hunt.  24  111.  598;  Thayer  x.  Finley,  Bank,  1  Scam.   428;   Adams  v.  Ar- 

86  111.    262;  BaU  v.    Miller,  38  111.  nold,  86  111.  185. 

110;    see  Iglehart  v,  Morris,  34  111.  *  Lewis  v.  Barber,  21  III.  App.  638. 
501;  Iglehart  y.  Church,'^  111.  255; 


60S  CONFESSION    OF   JUDGMENT. 

another  person  without  his  knowledge,  the  cognovit  will  be 
held  valid  until  repudiated.' 


No.  323.    Cognovit. 

In  the court. 

C.  D.  ) 


Term,  18—. 


ats.   Y  Assumpsit. 
A.  B.  ) 

And  the  said  C  D.,  defendant,  by  G.  H.,  his  attorney,  comes  and 
waives  service  of  process,  etc.,  and  confesses  that  the  said  A.  B..  plaintiff, 
on  occasion  of  the  non-performance  of  the  several  promises  in  the  said  dec- 
laration mentioned  (and  including  the  sum  of dollars  for  his  reasonable 

attorney's  fees  in  this  behalf),  has  sustained  damages  to  the  amount  of 

dollars,  over  and  above  liis  costs  by  him  about  this  suit  expended.  And  the 
defendant  agrees  that  judgment  may  be  entered  against  him,  in  this  be- 
half, for  that  amount  and  such  costs;  and  that  no  writ  of  error  or  appeal 
shall  be  prosecuted  on  such  judgment,  nor  any  bill  in  eqviity  exhibited  to 
interfere  in  any  manner  with  the  operation  thereof  :  And  he  releases  all 
error  that  may  intervene  in  the  entering  of  such  judgment,  or  in  the  issu- 
ing of  execution  thereon,  and  consents  to  immediate  execution  on  such 
judgment. 

In  term  time. — Where  a  judgment  is  taken  in  open  court 
on  warrant  of  attorne.y,  the  matter  must  be  brought  before 
the  judge  in  person,  and  passed  upon  by  him.  It  can  only  be 
entered  by  the  clerk,  in  vacation.^ 

A  judgment  by  confession  can,  in  term  time,  only  be  entered 
in  open  court.* 

Where  a  judgment  is  taken  in  term  time  it  is  immaterial 
whether  the  record  of  the  same  is  written  up  or  not  at  the 
time  an  execution  is  issued  thereon.*  But  an  execution  issued 
before  a  judgment  confessed  in  vacation  has  been  entered  up 
by  the  clerk,  is  void  and  can  not  be  cured  by  a  subsequent 
amendment  of  the  record.' 

The  record  of  a  court  showing  a  judgment  by  confession  in 
open  court,  imports  verity,  and  can  not  be  contradicted  by 
parol  evidence.* 

i  Hall  V.   Jones,   33    111.  38;  see  '  Bafcer  v.  Barber,  16  111.  App.  621; 

Martin  V.  Jiicld,  60  111.  78.  Liiig  v.  King,  91  III.  571;  Cummins 

2  Anderson  v.  Field,  6  Bradw.  307.  v.  Holmes,  109  111.  15. 

3  Conkling  v.  Ridgely,  112  111.  40;  « Weigley  v.  Matson,  125  III.  64; 
Anderson  v.  Field,  6  Bradw.  807.  Hansen  v,  Schlesinger,  125  111.  230; 

♦  Weigley  v.  3Iatson,  125  111.  64.  Boche  v.  Beldam,  119  111.  320. 


CONFESSION    OF   JUDGMENT.  609 

In  vacation — Power  of  clerk. — "Where  a  judgment  is  en- 
tered in  vacation  by  the  clerk,  the  proper  papers  should  be 
filed  with  him,  and  these  become  part  of  the  record;  and  a 
bill  of  exceptions  is  not  necessary  to  bring  them  before  the 
supreme  court.  Judgments  confessed  in  vacation  are  not 
judicial  acts.  They  are  merely  conclusions  of  law,  or  con- 
tracts acknowledged  of  record.' 

The  clerk  has  no  power  to  enter  a  judgment  by  confession 
in  vacation  without  proof  being  first  filed  of  the  execution  of 
the  power  of  attorney.^ 

The  clerk  has  no  power  to  pass  upon  the  sufficiency  of  the 
papers  so  filed.  If  papers  purporting  to  be  in  conformity  to 
the  practice  are  filed,  the  clerk  must  enter  the  judgment;  and 
if  they  are  insufficient  to  warrant  the  confession,  the  defend- 
ant may  apply  to  the  court,  when  in  session,  to  have  the  judg- 
ment vacated;  and  from  the  decision  of  the  court  on  that 
application  the  parties  may  prosecute  a  writ  of  error  in  the 
supreme  court.  Where  such  judgments  are  confessed  in  open 
court,  it  is  presumed  that  the  authority  to  confess  the  judg- 
ment was  judicially  passed  upon  by  the  court,^  at  least  when 
the  record  recites  that  due  proof  of  the  warrant  was  made.* 
but  a  judgment  confessed  in  vacation  creates  no  such  pre- 
sumption," 

The  confession  of  a  judgment  in  vacation  will  not  be  held 
valid  unless  there  is  a  strict  compliance  with  the  statute.' 
Where  a  judgment  confessed  is  void  for  want  of  proof  of  power 
to  execute  the  warrant  of  attorney,  such  proof  can  not  after- 
wards be  received  to  cure  the  defect.' 

^Durham  v.   Brown,   24    111.   93;  Biinn  v.    Gardner,   18  Bradw.   94; 

Stein  V.  Good,  115  111.  93;  Conkling  Campbell  v.  Goddard,  117  111.  251. 
V.  Ridgley,  112  111.  36.  ^Durham   v.    Brown,    24  111.   93 

•^Gardner  v.  Bunn,    132  111.  403,  Iglehart  v.   Ins.   Co.,   35    111.    514 

and  cases  there  cited.  Bunn  v.   Gardner,   18  Bradw,   94 

^Roundy    v.    Hunt,  24    111.    598;  Campbell  v.  Goddard,  117  111.  251 

Iglehart  v.  Morris,  34  111.  501;  Hall  Matzenbaugh  v.  Doyle,  156  111.  331. 
V.  Jones,  32  111.  38;  Martin  v.  Judd,  ^Matzenbaugh    v.    Doyle,    56  111. 

60  111.  78;  Russell  v.   Lillja,  90  111.  App.  343;  Stein  v.  Good,  115  111.  93; 

327.  MTiitney    v.    Bohlen,   157    111.  571: 

*  Iglehart  y.   Church,  35  111.   255;  Gordner  v.  5jm«,  132111.  403. 
Iglehart    v.    Ins.    Co.,  35  111.    514;  ■> Bailey  v.  Snyder,    61  111.   App. 


89 


472. 


GIO  CONFESSION    OF   JUDGMENT. 

When  may  be  taken  before  maturity. — A  judgment  by 
confession  may  be  entered  on  a  note  before  its  maturit3%  when 
the  warrant  of  attorney  authorizes  the  entry  at  "  any  time 
after  the  date  "  of  the  note.'  Where  the  warrant  authorizes 
the  entry  of  judgment  "  at  any  time  hereafter  "  it  may  be  en- 
tered on  the  same  day  the  power  is  executed; ""  but  where  the 
warrant  is  to  confess  "  at  any  time  from  and  after  date,"  a 
judgment  can  not  be  taken  until  after  the  day  of  the  date  has 
elapsed.'  A  judgment  by  confession  is  not  void  because  en- 
tered by  the  clerk  on  a  legal  holiday.* 

Attorney's  fees. — A  judgment  by  confession,  on  a  warrant 
of  attorney,  may  properly  include  attorney's  fees,  if  authorized 
by  the  warrant.*  But  where  a  promissory  note  contains  an 
ao-reement  on  the  part  of  the  maker,  that  in  case  suit  is  brought 
on  the  note  he  will  pay  a  certain  sum  as  attorney's  fees,  sucli 
sum  is  not  due  until  after  suit  is  brought,  and  can  not  be 
included  in  the  judgment.*  Where  a  warrant  of  attorney  au- 
thorizes a  confession  for  amount  due,  "  and  a  reasonable  attor- 
ney's fee,"  the  court  must  determine  the  reasonable  attorney's 
fee.' 

The  moral  obligation  resting  on  a  debtor  to  see  that  his 
creditor  gets  all  his  money  without  deduction  for  fees,  is  a  suf- 
ficient consideration  for  the  confession  of  a  judgment,  includ- 
ing reasonable  attorney's  fees;  but  where  the  debtor  is  insolv- 
ent, it  is  held  that  the  including  of  attorney's  fees  is  fraudulent 
and  void  as  to  other  creditors.' 

Confession  by  a  partner. — One  partner  can  not  execute  a 
warrant  of  attorney,  to  confess  a  judgment  in  the  firm  name, 

^Sherman  v.  Baddely,  11  III.  622;  '^Bradley  v.  Clandon,  45  HI.  App. 

Adams  \.  Arnold,   86  111.  185;  Frye  326,  and  cases  there  cited. 

V.  Jones,  78  111.    627;  McDonald  v.  ^  Ball  \.  Miller,  38   111.  110;  Weig- 

Chisholm,  131  111.  273.  ley  v.  Matson,  125  111.  64. 

^Thomas  v.  Mueller,  106  111.    36;  '^  Nickerson  v.  Babcock,  29111  497. 

Cummins  v.    Holmes,    11   111.  App*  '^Campbell  \.    Goddard,   117    HI. 

158;  Cohen  v.  Burgess,  44  111.  App*  251;  same  case,  123  111.  220;  see  Fol- 

206;  Bankv.   Havens,   61   111.  App.  lansbee  v.  Mfg.  Co.,   5  Bradw.  17; 

211.  Sole.sT.  Sheppai-d,  99  HI.  620;  Keith 

3  Waterman  v.  Jones,  28  HI.  54;  v.  Kellogg,  97  111.  147. 

llliitev.  Jones,  38  111.  159:  Chisholm  »  Hidse  v.  Mershon,  125  111.  52. 
V.  McDonald,  30  111.  App.  176. 


CONFESSION    OF   JUDGMENT.  611 

without  express  authority  from,  the  other  partner,  or  the  rati- 
fication of  the  act  by  the  latter;'  but  to  enable  a  third  party  to 
raise  the  question,  he  must  show  that  his  rights  have  been  in- 
vaded.' 

Confession  hj  corporation. — Neither  the  president  nor 
treasurer  of  a  corporation  has  an  implied  power,  by  virtue  of 
his  office,  to  confess  a  judgment  against  the  corporation.'  They 
can  only  exercise  such  power  when  it  has  been  given  them  in 
express  terms  by  the  board  of  directors.* 

Where  the  general  financial  manager  of  a  corporation  ex- 
ecutes a  judgment  note  in  the  course  of  business,  he  will  be 
presumed  to  have  acted  within  the  scope  of  his  power,  even 
though  no  resolution  of  the  directors  is  shown;  and  a  stranger 
dealing  with  him,  without  notice  of  want  of  authority,  will  be 
protected.  If  the  act  is  knowingly  acquiesced  in  by  the  corpo- 
rate authorities,  it  becomes  binding.^ 

By  an  infant. — A  minor  can  not  execute  a  valid  warrant  to 
confess  a  judgment,  and  a  judgment  based  upon  such  warrant 
is  void." 

In  cases  of  tort, — The  practice  of  entering  judgment  by 
confession  upon  warrant  of  attorney,  without  process,  in 
actions  for  tort,  is  not  allowable  by  the  common  laAv.  It  is 
allowed  only  in  respect  to  debts.' 

Sureties. —  The  statute  concerning  sureties  provides  that 
no  surety  shall  be  suffered  to  confess  judgment,  or  suffer 
judgment  to  go  by  default,  so  as  to  distress  his  principal,  if 
the  latter  will  enter  himself  as  defendant  to  the  suit,  and  ten- 
der to  the  surety  other  good  and  sufficient  collateral  security, 
to  be  approved  by  the  court  in  which  the  suit  shall  be  pend- 
ing.' 

^Heir\.  Kaufman,  134  111.  215;  Sloo  313;  see  Burcli  v.  West  134  111.  258; 

V.    Bank,  1   Scam.  428;   Martin  v.  Bailey  v.  Snyder,  61  111.  App.  472. 

Judd,m\\\.lS\XJhlendorf\.Kauff-  ^  Atwater  v.    Bank;   152   111.605; 

man,  41  111.  App.  375.  McDonald    v.    Crisholm,     131    111. 

"^  McCormick  V .  Coe,  53  III.  App.  273;  Moravvetz  on  Corp.,  Sec.  6-18. 

488;  Martin  v.  Judd,  60  111.  78;  Far-  « Fuqna  v.  Sholem,  60  111.  App.  140. 

?t7eZZ  V.  CooA;,  42  111.  App.  291.  Trench  v.    Wilier,   126   III.   611; 

^Joliet  V.  Ingalls,  23  111.  App.  45;  Buryisv.  Xash,  23  111.  App.  552. 

Adams  v.    Print.   Co.,   27  111.  App.  »  2  Starr  &  Curtis  2373;  Rev.  Stat. 

313;  Boston  V.Fisher,  59111.  App.400.  (1893)  1420;  Rev.  Stat.  (1895)  1518. 

*  Adams  V,  Print.  Co.,  27111.  App. 


612  CONFESSION   OF   JUDGMENT. 

Vacating  juclgnient. — Courts  of  law  possess  an  equitable 
jurisdiction  over  judgments  entered  by  confession  upon  war- 
rants of  attorney/  and  in  proper  cases  will  liberally  exercise 
such  jurisdiction.^ 

The  question,  on  a  motion  to  vacate  the  judgment,  is  not 
whether  it  shall  be  set  aside  for  errors  of  law,  but  whether 
there  are  equitable  reasons  why  it  should  be  opened  up  to  let 
in  a  defense.* 

Where  an  application  is  made  for  the  exercise  of  this  equi- 
table power,  and  it  clearly  appears  that  the  plaintiff  was  not 
entitled  to  judgment  on  the  bond,  or  note,  and  warrant  of  at- 
torney, the  court  will  vacate  the  judgment,  and  leave  him  to 
pursue  the  ordinary  remedy  by  action;  but' if  the  case  is  in- 
volved in  doubt,  or  the  testimony  is  so  contradictory  that  the 
truth  can  not  be  ascertained  with  reasonable  certainty,  an  is- 
sue may  be  directed  to  try  the  question — in  other  words,  the 
defendant  may  be  let  in  to  make  a  defense  on  the  merits." 

The  court,  in  such  case,  will  fully  protect  the  rights  of  the 
parties,  by  staying  all  proceedings  on  the  judgment,  and  per- 
mitting it  to  stand  on  a  lien  and  security,  until  the  merits  of 
the  case  are  heard  and  determined.  If  the  defense  is  success- 
ful, the  judgment  fails;  if  otherwise,  the  judgment  is  to  be 
enforced.^  The  court  has  power  to  open  a  judgment  when 
usury  is  alleged,  to  hear  the  parties,  and  reduce  the  amount  of 
the  judgment  or  set  it  aside  altogether.*  If  a  judgment  is 
entered  by  confession  for  more  than  is  authorized  by  the  war- 

^  Condon  v.Besse,8QI\\A5Q;  Lake  don  v.  Goodell,M  111.429;  Hall  v. 

V.  Cook,   15  111.   353;    Campbell    v.  Jones,  33  111.  38;  see  Bolton  v.  Mc- 

Goddard,  17  111.  App.  382;  Heir  v.  Kinley,  22  111.  203;  Stein  v.    Good, 

Kaufman,  134  111.  226;    Farwell  v.  115  111.  93. 

Huston,  151  111.  239.;  Packer  v,  Rob-  *  parwell  v.  Huston,  151  111.  239; 

erts,  140  111.  9;  Jordan  v.  Hunting-  Lake  v.  Cook,  15  111.  353;  Condon  v. 

ton,  58    111.  App.   646;  Bank  v.  Ha-  Sesse,  86111.  159;  Norton  v.  Allen,  69 

vens,  61  111.  App.  213.  111.   306;     Gibboney  v.  Gibboney,   2 

'^Lake  v.  Cook,  15  111.  353;    Ken-  Bradw.  322;  Packer  v.  Roberts,  140 

nedy  v.  Evans,  31  lU.  258;  Hall  v.  111.  9. 

Jones,  32  111.  38;  Burwell  v.  Oi'r,  84  «  Fleming  v.    Jenska,  22  111.    475; 

111.  465.  McGuire  v.    Campbell,  58  III.  App. 

3  Knox  V.  Bank,  57  111.  330;  Mum-  188;  Mumford  v.  Thomas,\h'l  111.  258; 

ford  V.  Thoman,  157  111.  258.  Chicago  v.  Bank,  145  111.  481. 

*  Lake  v.  Cook,  15  111.  353;   Gor- 


CONFESSION    OF   JUDGMENT.  613 

rant  of  attorney,  application  should  be  made  in  the  court 
where  the  judgment  was  entered,  to  correct  it,'  but  a  stranger 
to  the  record  can  not  complain,  although  he  be  a  creditor." 

An  assignee  for  the  benefit  of  creditors  is  the  proper  party 
to  make  the  motion  to  vacate  a  judgment  confessed  by  the  as- 
signor, before  making  the  assignment.* 

Where  the  defendant  has  been  let  in  to  plead,  the  original 
judgment  standing  as  security,  and  the  amount  thereof  was 
reduced  by  a  verdict,  an  order  of  the  court,  that  only  the 
amount  found  by  the  jury  should  be  made  on  the  execution 
already  issued,  was  held  to  have  been  properly  made.* 

The  like  rule  prevails  in  all  cases  of  mere  irregularity  in 
the  entry  of  judgment  by  confession;  and  on  application  to 
set  aside  the  judgment,  some  equitable  ground  for  relief  must 
be  shown.' 

A  judgment  entered  by  confession  in  vacation,  on  a  promis- 
sory note,  more  than  a  year  and  a  day  after  its  maturity,  will 
not  be  set  aside,  or  the  defendant  let  in  to  make  a  defense, 
merely  because  there  was  no  evidence  filed  that  the  defendant 
was  still  living,  and  that  the  debt,  or  a  part  of  it,  remained 
unpaid,  and  no  order  of  a  judge  was  obtained  for  the  entry 
of  the  judgment.  In  addition  to  the  want  of  proof,  or  an 
order  of  a  judge,  it  must  appear  that  the  defendant  has  a 
meritorious  defense." 

Where  a  judgment  was  confessed  on  a  note,  dated  April  2-1, 

^  Iglehart  v.  Morris,  M  111.  501;  ^  Risiyig  v.  Brainard,  36  El.  79; 
Stuhl  V.  Shipp,  44  111.  133;  see  Ball  v.  Miller,  38  111.  110;  Stuhl  v. 
Zuckerman  v.  Solomon,  73  111.  130;  Shipp,  44  111.  133;  Campbell  v.  God- 
Campbell  V.  Goddard,  117  111.  251.  dard,  17  Bradw.  383;  Packer  v.  Rob- 

2  Adams  v.  Arnold,  86  111.  185.  erts,  140  III.  9;  Hansen  v.  Schlesin- 

*  Martin  v.  Knight,  56  111.  App.  65;  ger,  125  111.  230;  Heir  v.  Kaufman, 
Roche  V.  Beldam,  119  111.320;  Conk-  134  111.  226;  Atkinson  v.  Foster,  134 
ling  V.  Ridgley,  112  111.  36;  Baker  v.  111.  472. 

Barber,  IQ  111.  App.    621;  Kingman  ^Hempstead  v.  Humphreys,  Z%\\\. 

V.  Reinemer,  58  111.  App.  173.  90;  see  Hinds  v.  Hopkins,  28111.  344; 

*  Boynton  v.  Remvick,  46  111.  280;  Rising  v.  Brainard,  36  111.  79;  Far- 
Page  V.  Wallace,  87  111.  84;  Wcdker  toell  v.  Meyer,  36  111.  510;  Stein  v. 
V.  Ensign,   1    Bradw.  113;    Stein  v.  Good,   16    Bradw.    516;  Alldvitt   v. 
Good,   115  111.    93:    BorcJisenius  v.  Bank,  22  111.  App.  24. 
Canutson,   100  111.    82;    Lay  ton  v. 

Lantz,  43  III.  App.  654. 


614  CONFESSION    OF   JUDGMENT. 

1856,  under  a  warrant  of  attorney  authorizing  a  confession  of 
judgment  on  a  note,  dated  April  24,  1846,  it  was  held  that  the 
judgment  was  a  nullity.' 

The  court  may  set  aside  a  judgment  by  confession,  on  mo- 
tion, during  the  term  in  which  it  is  rendered;  and  this  exer- 
cise of  discretion  is  not  a  matter  for  review  in  the  supreme 
court; '  but  a  motion  to  set  aside  a  judgment  by  confession, 
rendered  four  terms  previously,  comes  too  late/ 

It  has  been  held  that  a  motion  to  vacate,  filed  at  the  next 
ensuing  term  of  court  after  the  judgment  was  confessed,  is 
in  apt  time,*  and  that  it  may  be  made  by  the  executor  of  a 
deceased  maker.  ^ 

Where  the  note,  the  warrant  of  attorney,  the  cognovit  and 
the  judgment  all  correspond  in  amount,  a  variance  in  that  re- 
gard between  the  declaration  and  the  judgment  will  not  avail 
on  a  motion  to  vacate  the  judgment." 

Limitations. — If  by  the  running  of  the  statute  of  limita- 
tions, the  debt  is  barred,  the  power  to  confess  judgment  con- 
tained in  the  power  of  attorney  is  also  barred.' 

Power  to  confess  in  lease. — A  power  of  attorney  for  the 
confession  of  a  judgment  for  the  sum  due  is  not  authorized  by 
the  statute  nor  at  common  law  in  a  case  where  the  amount  of 
the  judgment  is  not  fixed  in  the  power,  and  depends  upon  the 
hearing  of  evidence  dehors  the  obligation  on  which  it  is  based 
and  to  which  the  power  is  attached.  And  a  power  in  a  lease 
to  confess  judgment  against  the  lessee  for  an  uncertain,  un- 
liquidated and  unlimited  amount  paid  out  for  water  and  gas 
rates,  etc.,  which  the  lease  provided  were  to  become  so  much 
additional  rent,  can  not  be  lawfully  either  given  or  exercised; ' 
but  it  has  been  held  that  where  the  lease  provides  for  a  stipu. 
lated  sum  to  be  paid  as  rent  in  installments,  a  judgment  may 

1  Chase  v.  Dana,  44  111.  263.  *  Kingman  v.  Reinemer,    58    111. 

s  Bolton  V.  McKhtleij,  23  111.  203;  App.  173. 

see  Gordon  v.  Goodell,  34  111.  429;  '"  Whitney  v.  Bohlen,  157  111.  571. 

Iglehart  v.  3Iorris,  34  111.  501;  Hall  «  Martin  v.  Judd,  60111.  78;  Adams 

V.  Jones,  32  111.  38;  Bunnell  v.  Orr,  v.  Arnold,  86  111.  185. 

84  111.  465;  Evans  v.  Laundry  Co.,  ■"  Matzenbaugh  v.    Doyle,  156  111. 

57111.  App.  150.  331;   Waldron   v.  Manson,  33  Wis. 

3  Austin  V.  Lott,  28  111.  519;  Hall  393;  Broicn    v.  Parker,  28  Wis.  22. 

V.  Jones,  32  111.  38.  «  Little  v.  Dyer,  138  III.  272. 


CONFESSION   OF   JUDGMENT.  615 

be  properly  confessed  for  the  amount  of  rent  due  as  shown  by 
the  lease.' 

Ill  forcible  detainer. — A  judgment  entered  by  confession 
under  a  warrant  of  attorney  and  cognovit  in  a  forcible  de- 
tainer suit,  is  unauthorized  by  law  and  void.' 

Appeal. — An  appeal  or  writ  of  error  will  not  lie  directly 
from  a  judgment  rendered  by  confession  when  the  warrant 
of  attorney  waives  all  errors  and  all  right  to  appeal  from  said 
judgment.  It  is  only  from  an  order  overruling  a  motion  to 
vacate  the  judgment  that  it  will  lie.' 

Vacation. — As  to  what  is  "  vacation  "  within  the  language 
of  the  statute,  see  cases  noted  below.* 

'  Scott  V.  Mantonya,  60  111.  App.  ton,  74  111.  437;  Little  v.  Dyer,  35 

481;  see  Bush  v.  Hanson,  70  111.  480;  111.  App.  87;    Werkmeister  v.  Beau- 

Seaver  v.   Siegel,  54  111.   App.  6325  mont,  46   111.   App.   370;    Seaver  v. 

Werkmeister  v.    Beaumont,   46  111.  Siegel,  54  111.  App.  632;  Mumford  v. 

App.  369;  Fortune  v.  Barth,  62  111.  Thoman,  54111.  App.  471;  Carpenter 

App.  290.  V.  Bank,  119  111.  356;  Hall  v.  Jones, 

'  French  v.    Wilier,   126  111.  611;  32  111.  38. 

Burns  v.  Nash,  23  111.  App.  552;  see  '*  Conkling  v.  Ridgley,  112  111.  36; 

Rl/an  V.  Kirschberg,  17111.  App.  132;  Field  v.  Ridgley,  116  111.  424;  Bank 

Linksv.  Mayer,  22  III.  App.  489.  v.  Daly,  34  111.  App.  173;  Jasper  v. 

^  Lake  v.  Cook,  15  111.  353;  Fi^ear  Schlesinger,  23  111.  App.  637. 
V.  Bank,  73  111.  473;  Hall  v.  Hamil- 


CHAPTER  XXI. 

DISTRESS  FOR  RENT. 

This  remecly  is  of  great  antiquity,  and  is  said  to  have  pre- 
vailed among  the  Gothic  nations  of  Europe  from  the  break- 
ing up  of  the  Roman  Empire.  The  English  statutes  since  the 
days  of  Magna  Charta  have,  from  time  to  time,  extended  and 
modified  its  features  to  meet  the  exigencies  of  the  times.^ 

The  legislature  of  this  state  has  generally,  and  with  some 
modifications  and  alterations,  adopted  the  English  provisions, 
recognizing  the  old  remedy  as  a  salutary  and  necessary  one, 
equally  conducive  to  the  security  of  the  landlord  and  to  the 
welfare  of  society.  Distress  for  rent  does  not  lie  unless  the 
relation  of  the  landlord  and  tenant  exists  and  there  is  certain 
fixed  rent  in  money,  produce  or  service  payable  at  a  certain 
time.* 

Landlord's  lien. — The  statute  of  Illinois  provides  that 
'•  everv  landlord  shall  have  a  lien  upon  the  crops  grown  or 
growing  upon  the  demised  premises  for  the  rent  thereof, 
whether  the  same  is  payable  wholly  or  in  part  in  money  or 
specific  articles  of  property  or  products  of  the  premises,  or 
labor,  and  also  for  the  faithful  performance  of  the  terms  of 
the  lease.  Such  lien  shall  continue  for  the  period  of  six  months 
after  the  expiration  of  the  time  for  which  the  premises  were 
demised." " 

The  lien  of  the  landlord,  upon  crops  growing  or  grown,  does 

'  Bouv.  Law  Diet  485.  677;  Craig  v.   Merime,   16  Bradw. 

^Marrv.  Ray,  151  111.  840;  Murr  214;  Meadv.  Thompson,   78  111.  62; 

V.  Glover,  34  111.  App.  373.  Watt  v,  Scofiekl,  76111.  261;  Thomp- 

3  3  Starr    &     Curtis    1504;    Rev.  son  v.  Mead,  67  111.    395;  O'Hara  v. 

Stat.    (1893)    923;  Rev.    Stat.   (1895)  Jones,  46111.  288;  Gittings  v.  Nelson, 

979;  Prettyman  v.  Unland,   77  111.  86  111.  591;     Webster  v.  Nicols,  104 

206;    Herron  v.    GiU,  112   111.    247;  111.  160. 
Hadden  v.   Knickerbocker,    70  Hi. 

(616) 


DISTRESS    FOR    KENT.  617 

not  depend  upon  the  levy  of  a  distress  warrant,  but  is  given 
by  the  statute,  so  that  an  attaching  creditor  can  not,  by  bring- 
ing an  attachment  before  the  issuing  of  the  distress  warrant, 
gain  any  precedence.' 

A  purchaser  of  grain  raised  by  a  tenant,  upon  which  a  land- 
lord has  a  lien  for  rent,  with  knowledge  of  that  fact,  and  that 
the  rent  is  not  fully  paid,  will  be  liable  to  the  landlord  in 
trover  for  the  rent  due,  to  the  extent  of  the  value  of  the  grain 
purchased  by  him.' 

But  a  hona  fide  purchaser  without  notice,  or  facts  sufficient 
to  put  him  on  inquiry,  will  not  be  liable  for  its  value  in  a  per- 
sonal action,  although  the  landlord  may  still  levy  his  distress 
warrant  on  the  grain,  if  it  can  be  found  and  identified.^  The 
lien  attaches  upon  the  crops  grown  upon  the  demised  premises 
in  any  given  year,  for  the  rent  of  such  year,  from  the  time  of 
the  commencement  of  their  growth,  whether  the  rent  is  then 
due  or  not.* 

What  property  may  be  distrained. — "  In  all  cases  of  dis- 
tress for  rent,  the  landlord,  by  himself,  his  agent  or  attorney, 
may  seize  for  rent  any  personal  property  of  his  tenant  that 
may  be  found  in  the  county  where  such  tenant  shall  reside; 
and  in  no  case  shall  the  property  of  any  otiier  person,  al- 
though the  same  may  be  found  on  the  premises,  be  liable  to 
seizure  for  rent  due  from  such  tenant."  ^ 

If  property  of  a  third  party  temporarily  in  the  possession  of 
a  tenant,  is  taken  under  a  distress  against  the  tenant,  the  land- 
lord will  be  liable  to  the  owner  for  its  value.'  The  same 
articles  of  personal  property  which  are,  by  law,  exempt  from 
execution,  except  the  crops  grown  or  growing  upon  the  de- 
mised   premises,  are     also    exempt   from  distress  for    rent.' 

1  Mead  v.  TJwmpson,  78  111.  62.  « Emmert  v.  Reinhardt,  67  111.  481. 

''Prettyman  v.  Unkind,  77  111.  211;  '  'i  Starr  &  Curtis,  1504;  Rev.    Stat. 

Carter  v.  Andreivs,  56  111.  App.  646.  (1893)  923;  Rev.  Stat.  (1895)  978;   see 

^Finney  v.  Harding,  136  111.  573,  Johnson  v.  Pnissing,  4  Bradw.  575; 

and  cases  there  cited.  Lindley  v.  Miller,  67   111.  244:  Bon- 

*  Watt  V.  Scofield,  76  111.  261 .  neU  v.  Boicman,  53  111.  460;  Smothers 

5  Starr  &  Curtis.  1500;  Rev.   Stat.  v.  Holly,   47   111.   331;    Bingham   v, 

(1893)  921;  Rev.  Stat. (1895)  977;  i/o«a-  Maxey,  15  111.  290;  Cook  v.  Seott,  { 

day  V.  Bartholomeio,  n  Bradw.  20&;  Gilni.  333;  McCluskey  v.    McXeely, 

Becker  v.   Dnpree,   75   111.  167;   see  3  Gilm.  578;  HoUnday  v.  Bartholo- 

Herronv.  Gill,  112  111.  247.  view,  11  Bradw.  206. 


618  DISTRESS   FOR   RENT. 

"  When  a  tenant  abandons  or  removes  from  the  premises,  or 
any  part  thereof,  the  landlord,  or  his  agent  or  attorney,  may 
seize  upon  any  grain  or  other  crops  grown  or  growing  upon 
the  premises  or  part  thereof  so  abandoned,  whether  the  rent  is 
due  or  not.'  If  such  grain  or  other  crops  or  any  part  thereof 
is  not  fully  grown  or  matured,  the  landlord,  or  his  agent  or 
attorney,  shall  cause  the  same  to  be  properly  cultivated  and 
harvested  or  gathered,  and  may  sell  and  dispose  of  the  same, 
and  apply  the  proceeds,  so  far  as  may  be  necessary,  to  com- 
pensate him  for  his  labor  and  expenses,  and  to  pay  the  rent : 
Provided.,  the  tenant  may,  at  any  time  before  sale  of  the  prop- 
erty so  seized,  redeem  the  same  by  tendering  the  rent  due  and 
the  reasonable  compensation  and  expenses  of  the  cultivation 
and  harvesting  or  gathering  the  same,  or  he  may  replevy  the 
property  seized." ' 

"That  if  any  tenant  shall,  without  the  consent  of  his  land- 
lord, sell  and  remove,  or  permit  to  be  removed,  or  be  about 
to  sell  and  remove,  or  permit  to  be  removed  from  the 
demised  premises,  such  part  or  portion  of  the  crops  raised 
thereon,  as  shall  endanger  the  lien  of  the  landlord  upon  such 
crops  for  the  rent  agreed  to  be  paid,  it  shall  and  may  be  law- 
ful for  the  landlord  to  institute  proceedings  by  distress  before 
the  rent  is  due,  as  is  now  provided  by  law,  in  case  of  the  re- 
moval of  the  tenant  from  the  demised  premises;  and  thereafter 
the  proceedings  shall  be  conducted  in  the  same  manner  as  is 
now  provided  by  law  in  ordinary  cases  of  distress,  where  the 
rent  is  due  and  unpaid." 

"  When  the  rent  is  payable  wholly  or  in  part  in  specific 
articles  of  property  or  products  of  the  premises,  or  labor,  the 
landlord  may  distrain  for  the  value  of  such  articles,  products 
or  labor." 

"  The  right  of  the  landlord  to  distrain  the  personal  goods  of 
the  tenant,  shall  continue  for  the  period  of  six  months  after 
the  expiration  of  the  term  for  which  the  premises  were  demised 
or  the  tenancy  is  terminated."  ' 

» See  Finney  v.  Harding,  136  111.       (1895),  979;    2  Starr  &  Curtis,  1506; 
573;   Bunk  v.   Adain,  138  111.  483.         Hare  v.  Stegall,  60  111.  380. 
» Rey.  Stat.  (1893)  923;  Rev.  Stat.  ^  Werner  v.  Bopieqiiet,  44  111.  522. 


DISTRESS    FOE   KENT.  619 

A  distress  warrant  issued  after  six  months  from  the  time  of 
the  termination  of  the  lease,  is  null  and  void.'  A  landlord 
can  not  legally  seize  the  property  of  his  tenant,  for  rent,  with- 
out first  issuing  a  distress  warrant  as  provided  by  statute.  It 
was  otherwise  at  common  law."  A  distress  warrant  can  not 
be  issued  against  a  dead  person,  nor  against  his  administrator.^ 

No.  32^.     Warrant  of  distress  by  landlord. 

State  of  Illinois,  ) 

County  of ,      )  ^• 

To  the  Sheriff  or  any  constable  of  said  county:  (or  E.  F.,  agent  or  at- 
torney). 

Distrain  the  goods  and  chattels  of  C.  D.  which  are  liable  to  be  distrained, 

wherever  they  may  be  found  in  the  county  of ,  where  the  said  C.  D. 

resides,  for  the  sum  of dollars,  being {stating  the  time  for  which 

rent  is  due),  rent  due  me  on  the  —  day  of    ,  18 — ,  from  the  said  C.  D. 

for  the  premises  now  in  his  possession,  demised  to  him  by  me,  and  situated 
in  said  county. 

Dated  this  —  day  of  ,  18—. 

A.  B. 

No  description  of  the  demised  premises  is  necessary  to  be 
given  in  a  distress  warrant.* 

A  landlord  is  permitted  to  make  a  reasonable  distress,  and 
he  is  not  bound  to  confine  himself  to  the  precise  amount  of 
rent  due.  If  he  were  knowingly  to  claim  more  rent  than  was 
due,  for  the  purpose  of  oppression  and  wrong,  and  levy  an 
amount  sufficient  for  its  payment,  he  would  be  guilty  of  will- 
fully and  maliciously  making  an  excessive  levy;  but  a  mere 
mistake  in  judgment  as  to  the  value  of  the  property  seized,  or 
a  want  of  knowledge  of  the  sum  due,  can  not  render  him  a 
trespasser.^ 

The  action  of  replevin  may  be  brought  to  try  the  legality 
of  a  distress  for  rent,  provided  there  is  no  sum  whatever  due 
for  rent;  but  if  any  sum  is  due,  and  the  distress  is  for  a 
greater  sum,  or  is  excessive  in  regard  to  the  quantity  of  goods 

1  Wenier  v.  Ropiequet,  44  111,  522.  3  Estate  v.  Noble,  159  111,  311. 

^Arnold  V.  Phillips,  59  111,  App.  *Alwood  v.  Mansfield, S  S  111.  452. 

213.  ^  Harms  v.  Solem,  79  111,  460. 


620  DISTRESS    FOR   RENT. 

taken,  or  otherwise  is  irregular,  the  remedy  must  be  by  an 
action  of  case. ' 

Return  of  distress  warrant — Inrentory. — "  The  person 
making  such  distress  warrant  shall  immediately  file  with  some 
justice  of  the  peace,  if  the  amount  of  the  claim  is  within  his 
jurisdiction,  or  with  the  clerk  of  a  court  of  record  of  compe- 
tent jurisdiction,  a  copy  of  the  distress  warrant,  together  with 
an  inventory  of  the  property  levied  upon."  * 

No.  325.    Inventory  to  be  filed  with  copy  of  distress  warrant. 

State  of  Illinois,  ) 

County  of .      S 

An  inventory  of  the  several  goods  and  chattels  of  C.  D. ,  distrained  by  me, 

on  the day  of ,  18 — ,  in  the  county  of ,  where  the  said  C.  D. 

resides,  by  virtue  of  the  warrant  and  authority,  and  in  behalf  of  A.  B.,  the 

landlord,  for  the  sum  of dollars,  being  for rent  due  to  the  said 

landlord,  on  the day  of ,  18 — ,  for  tlie  premises  in  the  wariant 

mentioned,  to  wit: 

{Here  describe  the  property  distrained.) 

E.  F.,  Sheriff  of 

County. 

Summons  to  issue. — "Upon  the  filing  of  such  copy  of  dis- 
tress warrant  and  inventory,  the  justice  of  the  peace  or  clerk 
shall  issue  a  summons  against  the  party  against  whom  the 
distress  warrant  shall  have  been  issued,  returnable  as  other 
summons." 

Notice  to  non-residents,  etc. — "  "When  it  shall  appear,  by 
afiidavit  filed  in  the  court  where  such  proceeding  is  pending, 
that  the  defendant  is  a  non-resident  or  has  departed  from  this 
state,  or  on  due  inquiry  can  not  be  found,  or  is  concealed 
within  this  state,  and  the  affiant  shall  state  the  place  of  resi- 
dence of  said  defendant,  if  known,  and  if  not  known,  that  upon 
diligent  inquiry  he  has  not  been  able  to  ascertain  the  same, 
notice  may  be  given,  if  the  suit  is  before  a  justice  of  the  peace, 
as  in  cases  of  attachment  before  justices,  or  if  in  a  court  of 
record,  as  in  attachment  cases  in  such  courts."  ^ 

'  Hare  v.  Stegall,  60  111.  380;  Lind-  '  2  Starr  &  Curtis,  1501;  Rev.  Stat. 

ley  V.  Miller,  67  111.  244;  see  Speer      (l893)  931. 

v.  Skinner,  35  111.  282.  '  2  Starr  &  Curtis'  An.  Stat.  1502; 

Rev.  Stat.  (1893)  629. 


DISTRESS    FOR   RENT.  621 

No.  326.     Affidavit  for  pudlication  against  non-residents,  etc. 

In  the of  the  county  of in  the  State  of  Illinois. 

A.  B.      ) 

vs.         -  Distress  for  rent. 
C.  D.      ) 

A.  B.,  of,  etc.,  on  oath  states,  that  C.  D.,  the  above  named  defendant,  is  a 
non-resident,  (or  "  has  departed  from  this  state,"  or  "  on  due  inquiry  can 
not  be  foimd,"  or ''is  concealed  within  this  state,"  as  the  case  maybe), 

and  that  the  place  of  residence  of  the  said  C.  D.  is (or  "  is  not 

knotvn,  and  upon  diligent  inquiry  affiant  lias  not  been  able  to  ascertain  the 
same.") 

Subscribed  and  sworn,  etc.  A.  B. 

Proceedings— Pleadings. — The  statute  provides  that  "  the 
suit  shall  thereafter  proceed  in  the  same  manner  as  in  case  of 
attachment  before  such  court  of  justice  of  the  peace;  pro- 
vided, that  it  shall  not  be  necessary  for  the  plaintiff  in  any 
case  to  file  a  declaration,  but  the  distress  warrant  shall  stand 
for  a  declaration,  and  shall  be  amendable,  as  other  declarations, 
provkled,  that  no  such  amendment  shall  in  any  way  affect  any 
liabilities  that  may  have  accrued  in  the  execution  of  such  war- 
rant." '  Where  a  plaintiff  files  an  affidavit  of  claim  with  the 
distress  warrant,  the  defendant  is  bound  to  file  with  his  pleas 
an  affidavit  of  merits.^ 

The  statute  provides  that  proceedings  in  distress  shall  be 
the  same  as  in  attachment  cases,  and  the  distress  warrant  shall 
stand  as  a  declaration.  In  attachment  cases,  the  defeat  of  the 
attachment,  where  there  was  personal  appearance,  does  not 
defeat  the  action,  only  the  lien  of  the  attachment,  and  this 
rule  applies  in  distress  for  rent,  to  allow  a  recovery  for  the 
rent  where  there  is  personal  appearance  and  defense  to  the 
merits.^  A  distress  warrant  is  not  a  lien  prior  to  executions, 
except  as  to  growing  crops.* 

Defenses — Set-off,  etc.— The  statute  provides  that  "the 
defendant  may  avail  himself   of   any  set-off   or  other  defense 

'  Rev.  Stat.  (1893),  923;  Rev.  Stat.  2  Bnrtlett  v.  Sullivan,  87111.  219. 

(189.1),  977;   2  Starr  &  Curtis.  1502;  ^  Holley  v.  Metcalf,  12  Bradw.  141; 

Holley  v.  Metcalf,  12  Bradw.  141;  see  see  Alwood  v.  Mansfield,  33  111.  452; 

Oldsv.  Loomis,  10  Bradw.  498;  Cun-  Kruse  v,  Kruse,  68  111.  188;  Storing 

neav.    Willianis,   11  Brad.    72;  Al-  v.  Ojdey,U  III.  123. 
toood  V.  Mansfield,  33  111.  452;  Bart-  *  Rowland  v.  Hewitt,   19  Bradw. 

lett  V.  Sullivan,  87  111.  219.  450;  Herron  v.  Gill,  112  111.  247. 


622  DISTRESS    FOE   EENT. 

which  Avould  have  been  proper  if  the  suit  had  been  for  the 
rent  in  any  form  of  action,  and  with  like  effect." ' 

In  a  distress  for  rent,  where  the  defendant  pleads  no  rent 
in  arrear  only,  he  can  not  recover  judgment  for  damages. 
To  authorize  this  he  must  plead  a  set-off,  either  specially,  or 
give  notice  under  the  general  issue.  The  action  is  for  rent 
only,  and  unless  the  defendant  opens  the  door  to  the  investi- 
gation of  other  matters,  by  pleading  a  set-off,  the  rent  alone 
is  the  proper  subject-matter  of  the  suit,  and  to  this  the  proof 
should  be  confined.  But  if  the  tenant  pleads  a  set-off,  the 
landlord,  by  way  of  replication,  may  plead  any  matter  of  de- 
fense, such  as  a  set-off,  the  same  as  if  he  were  sued  as  defend- 
ant; but  the  landlord,  in  such  case,  can  not  recover  for  any 
excess  of  his  set-off  over  that  of  the  tenant.  The  prayer  of 
judgment  in  such  replication  should  be  as  claimed  in  the  dec- 
laration.* 

The  statute  giving  the  tenant  the  right  to  avail  himself  of  a 
set-off  was  intended  to  apply  only  to  cases  where,  upon  a  fair 
adjustment  of  all  counter  claims  other  than  the  rent,  the  land- 
lord will  be  indebted  to  the  tenant,  and  in  such  case  gives  the 
tenant  the  benefit  of  his  claim  on  such  balance.^ 

Judgment  for  plaintiff. — "  If  the  plaintiff  succeeds  in  his 
suit,  judgment  shall  be  given  in  his  favor  for  the  amount  which 
shall  be  due  him.  When  the  defendant  has  been  served 
with  process,  or  appears  to  the  action,  the  judgment  shall 
have  the  same  force  and  effect  as  in  suits  commenced  by  sum- 
mons, and  execution  may  issue  thereon,  not  only  against  the 
property  distrained,  but  also  against  the  other  property  of  the 
defendant.  But  the  property  distrained,  if  the  same  has  not 
been  replevied  or  released  from  seizure,  shall  be  first  sold."  * 

When  there  has  been  personal  service,  or  a  personal  appear- 
ance, a  judgment  rendered  is  final  and  conclusive  between  the 

'2  Starr  &  Curtis,  1503:  Rev.  Stat.  Lindley  v.  Miller,  67  111.  344;  Hat- 

(1893)  923;  Rev.  Stat.  (1895)  977;  see  field  v.  Fullerton,  24  111.  280. 

Sketoe  v.  Ellis,  14  111.  75;  Lindley  v.  •»  Rev.  Stat.  (1893)  922;  Rev.  Stat. 

Miller,  67  111.  244;  Lynch  v.  Bald-  (1895)  978;   2    Starr  &  Curtis   1502; 

win,  69  111.  210.  Clevenger  v.  Dunaway,  84  111.  367; 

•'Cox  V.  Jordan,  86  111.   560;  see  Kruse  v .  Kruse,  68  111.  188;  iJait/i  v. 

Asay  V.  Sparr,  26  111.  115.  Ritchie,  1  Bradw.  188. 

3  See  Lynch  v.  Baldwin,  69  111.  310; 


DISTRESS   rOK   KENT.  623 

parties  as  to  all  matters  that  should  have  been  determined  in 
the  proceeding,  the  chief  of  which  is,  whether  rent  was  due, 
and  if  so,  what  amount." 

Where  there  is  no  personal  seryice,  etc. — "  Where  publi- 
cation of  notice  shall  have  been  made,  as  provided  by  this  act, 
but  the  defendant  is  not  served  with  process,  and  does  not  ap- 
pear, judgment  by  default  may  be  entered,  and  the  plaintiff 
may  recover  the  amount  due  him  for  rent  at  the  time  of  issu- 
ing the  distress  warrant,  and  a  special  execution  shall  issue 
against  the  property  distrained,  but  no  execution  shall  issue 
against  any  other  property  of  the  defendant." 

Judgment  for  defendant,  etc. — The  statute  further  pro- 
vides that  "  if  the  judgment  is  in  favor  of  the  defendant,  he 
shall  recover  costs  and  have  judgment  for  the  return  of  the 
property  distrained,  unless  the  same  has  been  replevied  or  re- 
leased from  such  distress.  And  if  a  set-off  is  interposed,  and 
it  appears  that  a  balance  is  due  from  the  plaintiff  to  the  de- 
fendant, judgment  shall  be  rendered  for  the  defendant  for  the 
amount  thereof. 

Release  of  property  distrained — Bond. — "  When  any  dis- 
tress warrant  has  been  levied,  the  person  whose  propertv  is 
distrained  may  release  the  same  by  entering  into  bond  in 
double  the  amount  of  the  rent  claimed,  payable  to  the  landlord, 
with  sufficient  sureties,  to  be  approved  by  the  person  making 
the  levy  if  the  bond  is  tendered  before  the  filing  of  the  copy 
of  the  warrant,  as  provided  in  this  act,  or  if  after,  by  the  clerk 
of  the  court  in  which,  or  justice  of  the  peace  before  whom,  the 
suit  is  pending,  conditioned  to  pay  whatever  judgment  the  land- 
lord may  recover  in  the  suit,  with  costs  of  suit.  If  the  bond 
is  taken  before  the  filing  of  a  copy  of  the  distress  warrant, 
such  bond  shall  be  filed  therewith;  and  if  taken  after  the  filing 
of  a  copy  of  the  distress  warrant,  it  shall  be  filed  in  the  court, 
or  with  the  justice,  where  the  suit  is  pending." " 

Perishable  property. — "  If  any  property  distrained  is  of  a 
perishable  nature,  and  in  danger  of  immediate  waste  or  decay, 
and  the  same  is  not  replevied  or  bonded,  the  landlord  or  his 

'See  Clevenger  v.  Dunaway,  84  *Seei2aM?iv. iJi7c/iie,  1  Brad w.  188. 
111.  367. 


G24r  DISTRESS    FOK    RENT. 

agent  or  attorney  may,  upon  giving  notice  to  the  defendant  or 
his  attorney,  if  either  can  be  found  in  the  county,  or  if  neither 
can  be  found,  without  any  notice,  apply  to  the  judge  or  a  master 
in  chancery  of  the  court  in  which,  or  the  justice  of  the  peace 
before  whom,  the  suit  is  pending,  describing  the  property,  and 
showing  that  the  same  is  so  in  danger,  and  if  such  judge,  mas- 
ter or  justice  of  the  peace  is  satisfied  that  the  property  is  of  a 
perishable  nature  and  in  danger  of  immediate  waste  or  decay, 
and  if  the  defendant  or  his  attorney  is  not  served  with  notice, 
or  it  does  not  appear  that  he  can  not  be  found  in  the  county,  he 
may  issue  an  order  to  the  person  having  possession  of  the 
property,  directing  the  sale  thereof  upon  such  time  and  such 
notice,  terms  and  conditions  as  the  judge,  master  or  justice  of 
the  peace  shall  think  for  the  best  interest  of  the  parties  con- 
cerned. The  money  arising  from  such  sale  shall  be  deposited 
with  the  clerk  of  the  court  in  which,  or  justice  of  the  peace 
before  whom  the  suit  is  pending,  there  to  abide  the  event  of 
the  suit." 

Rights  against  sub-lessees,  etc. — The  statute  provides  that 
"  In  all  cases  where  the  demised  premises  shall  be  sub-let,  or 
the  lease  is  assigned,  the  landlord  shall  have  the  same  right  to 
enforce  his  lien  against  the  sub-lessee  or  assignee  that  he  has 
ao-ainst  the  tenant  to  whom  the  premises  were  demised." 

There  can  be  no  distress,  unless  there  has  been  an  actual 
demise,  at  a  certain  fixed  rent;  and  unless  it  be  for  rent  due.' 

A  purchaser  at  a  foreclosure  sale  can  not  distrain  for  rent, 
unless  the  tenant  has  attorned  to  him."  A  person  not  occupy- 
ino'  the  position  of  lessor,  grantee,  assignee  or  heir,  can  not 
maintain  a  distress.* 

'  Johnson  v.  Prussing,  4  Bradw.  40;  Taylor's    Land.  &   Ten.   561-4; 

575.  Hatfield  v.    Fullerton,   24  111.   278; 

2  Reed  v.  Bartlett,  9  Bradw.  267.  Leitch  v.  Boyington,  84  111.  179. 
*  McGillick  y.  McAllister, 10  Bradw. 


CHAPTER  XXII. 

CASE. 

By  the  21st  section  of  the  Illinois  Practice  Act,  it  is  enacted 
that  "  the  distinctions  between  the  actions  of  trespass  and  tres- 
pass on  the  case  are  hereby  abolished;  and  in  all  cases  where  tres- 
pass or  trespass  on  the  case  have  been  heretofore  the  appro- 
priate form  of  action,  either  of  said  forms  may  be  used,  as  the 
party  bringing  the  action  may  elect."  * 

This  section  allows  counts  in  trespass  and  counts  in  case  to 
be  joined  in  one  declaration,  and  the  action  to  be  called  either 
trespass  or  case,  but  each  count  must  state  a  complete  cause  of 
action  either  in  trespass  or  case;  and  the  evidence  must  corre- 
spond with  the  pleadings." 

Trespass  on  the  case  is  the  form  of  action  usually  resorted 
to  for  the  redress  of  wrongs  done  to  a  man's  person,  reputa- 
tion, goods  or  estate,  without  direct  force.  It  lies  for  negli- 
gence or  nonfeasance,  that  is,  the  omission  of  what  one  is 
bound  by  law  to  perform;  misfeasance,  that  is,  an  improper 
performance  of  what  one  has  a  right  to  do  in  a  proper  man- 
ner, or  what  one  has  undertaken,  or  is  bound  by  law  to  per- 
form; or  malfeasance,  that  is,  doing  what  is  illegal,  or  what 
one  has  no  right  to  do;  whereby  a  consequential  injury 
results  to  another. 

It  is  a  familiar  principle  that  where  a  person  exercises  or 
enjoys  a  peculiar  privilege,  productive  of  benefit  to  him  alone, 
the  law  requires  that  he  shall  exercise  extraordinary  care  to 
so  use  or  enjoy  such  special  privilege  that  no  injury  shall  re- 
sult through  such  use  or  enjoyment  to  other  persons.^ 

»Rev.  Stat.  (1893),  1074;  Rev.  Stat.       Blaloch  v.  Randall,  76  III.  224;  R. 
(1895).  1158;  2  Starr  &  Curtis   1787;      R.  Co.  v.  Summit,  3  Bradw.  155. 
Krug  V.  Ward,  77  111.  603;  Barker  v.  ^Nelson  v.  Godfrey,  12  III.  20;  see 

Koozier,  80  111.  205.  Schtcartz  v.  Gilmore,  45  III.  455;  iJ. 

« Gay  V.  DeWerff,  17  Bradw.  417;      R.  Co.  v.  Middlesivorth,  46  111.  494; 
40  (625) 


626  CASE. 

An  action  on  the  case  will  lie  against  one  erecting  a  nui- 
sance, or  one  continuing  a  nuisance  erected  by  another.' 

Case  lies  where  the  plaintiff  has  been  aggrieved  and  dam- 
nified by  the  commission  of  unlawful  acts  b}*^  the  defendants, 
in  pursuance  of  a  combination  or  conspiracy  for  that  pur- 
pose." 

This  action  lies  also  against  one  who  knowingly  sells  un- 
wholesome meat;  ^  and  against  a  public  officer,  for  refusing 
the  plaintiff's  vote  at  a  town  meeting.* 

An  officer  who  negligently  permits  the  escape  of  a  prisoner, 
is  liable  to  any  person  injured  by  such  neglect  of  official  duty.* 

A  constable,  having  the  custody  of  a  person  on  a  bastardy 
warrant,  is  liable  to  the  mother  of  the  illegitimate  child,  for 
neo-ligently  suffering  such  prisoner  to  escape.* 

Case  lies  against  a  magistrate  for  a  corrupt  refusal  to  allow 
an  appeal  from  his  decision.'  If  a  justice  of  the  peace  acts 
corruptly,  he  can  be  made  to  answer  criminally  and  civilly.* 

When  the  receiver  of  a  telegram  is  injured  by  reason  of  the 
careless  and  negligent  performance  of  the  telegrapher's  duty 
the  proper  remedy  is  an  action  on  the  case.* 

"Where  stock  is  shipped  under  a  special  contract  and  damage 
is  sustained  to  such  stock,  the  shipper  may  have  his  action  on 
the  case  for  damages.'" 

Actions  upon  the  case  do  not  depend  upon  the  holding  by 
the  plaintiff  of  a  legal  estate  in  the  thing  for  an  injury  to 
which  the  action  is  brought."     The  action  of  case  is  a  proper 

R.  R.   Co.  V.  Phillips,  49  111.  234;  (Me.)  411;  see  MUls  v.   3IcCabe,  44 

Springfield  v.  LeChdre,  49  111.  476.  111.  194. 

^  Arundel  V.  McCtdloch,  10  Mass.  ^Broumv.  Genung,  1  Wend-  115; 

72;  see  Gas  Co.  v.  Graham,  28  111.  Pease  v.  Hubbard,  37  111.  257;  Will- 

73;    Gas  Co.  v.   Thompson,   39  111.  iams  v.  Mostyn,   4  M.   &  W.    145; 

599;  Marnier  v.  Lussem,  65  111.  484;  Sawyer  v.  Ballew,  4  Port  (Ala.)  116. 
Guest  V.  Reynolds,  68  111.  478.  « p^ase  v.  Hubbard,  37  111.  257. 

2  Mott  V.  Danforth,  6  Watts  (Penn.)  ■"  Tompkins  v.  Sands,  8  Wend.  462. 

306;  Griffith  v.   Ogle,    1   Binn.  172;  «  Garfield  v.  Douglas,  22  111.  100. 

Mitdiell  V.  Peiirod,  8  Serg.  &  R.  522;  »  Tel.  Co.  v.  Dubois,  128  111.  254. 

Polk  V.  FancJier,  1  Head  336.  '«  Coles  v.  R.  R.  Co.,  41  111.  App. 

^Peckham  v.  Holman,    11    Pick.  609. 
4g4_  "  Chitty's  PL,  title,  Actions  on  the 

*  Osgood   V.    Bradley,   7    Greenl.  Case;  Yates  v.  Joyce,  11  Johns.  136; 


CASE.  C27 

proceeding  for  an  injury  to  property  when  the  interest  in  it  is 
in  reversion/ 

Such  action  is  an  appropriate  remedy  for  a  mortgagor 
when  property  has  been  injured  while  in  the  possession  of  the 
mortgagee.' 

Where  one  person  makes  an  unauthorized  and  tortious  use 
of  the  property  of  another,  and  thereby  realizes  profits,  the 
owner  may  disaffirm  the  transaction  and  sue  as  for  a  tort,  or 
he  may  waive  the  tort  and  recover  the  money  realized,  in  an 
action  for  money  had  and  received.' 

A  lunatic  is  liable  in  a  civil  action  for  a  tort  committed  by 
him.* 

Case  may  be  maintained  against  a  sheriff,  for  taking  an  in- 
sufficient bond  in  replevin; '  or  for  not  returning  an  execution, 
though  the  plaintiff  may  proceed  by  attachment.*  And  case 
lies  also  against  a  person  who  has  neglected  to  attend  and 
give  evidence  in  a  cause,  after  service  of  suhpmna.^ 

Case  lies  for  an  infringement  of  a  copyright.^ 

It  lies  for  not  repairing  fences,  whereby  cattle  got  into 
plaintiff's  field.* 

Where  goods  are  deposited  with  a  party,  to  be  sold  at  not 
less  than  a  certain  fixed  price,  and  the  depositary  sells  them  at 
a  less  price,  case,  not  trover,  is  the  proper  remedy.'" 

An  action  on  the  case  may  be  sustained  against  an  inn- 

SchaXk  V.  Kingsley,  supra;  Newman  207;  Kron  v.  Schoomnaker,  3  Barb. 

V.  Ty meson,  13  Wis.  191.  649;  Morse  v.  Crawford,  17  Vt.  499. 

'  Chitty's  Pi.,  title,  Actions  on  the  '  Rev.  Stat.  (1893),  1173;  Rev.  Stat. 

Case;  Frankentlud  v.  Mayer,  54  111.  (1895),    1257;    Starr  &  Curtis  2014; 

App.  160.  People  v.  Robinson,  89  lU.  159;  Peo- 

*  Woodside  v.  Adams,  40  N.  J.  L.  pie  v.  Core,  85  111.  248. 

417,  422,  424,  426;  Jackson  ads.  Tur-  ^  Burk  v.  Caviphell,  15  Johns.  456. 

rell,  39  N.  J.  L.    329,  333:  Jones  on  ''Pearson  v.  lies,  Doug.  556;  Hallet 

Chattel  Mortgages,   Sec.  683;  Leach  v.  Mears,  13  East  17,  n;  2  Chit.  PI. 

V.  Kimball,  34  N.  H.  568;  Russell  v.  757. 

Butterfield,2\^en6..'^()0;Schalkv.  ^Clementiv.   Goulding,    11    East 

Kingsley,  42  N.  J.  L.  32.  244;  1  Camp.  94. 

» Drill  Co.  V.  Ashurst,  148  111.  115.  » 1  Salk.  335;  Saxton  v.  Bacon,   31 

*McInt7jrev.  Scholtz,  24:  m.  App.  Vt.  540. 

605;  1  Chit.  PI.  76;  Cooley  on  Torts,  "  16  Johns.  74. 
100;  Ex  parte   Leighton,   14  Mass. 


028  CASE. 

keeper,  for  goods  lost  or  stolen  out  of  his  inn,  witliout  proving 
negligence.' 

Case  lies  by  a  husband  against  his  wife's  father,  for  enticing 
her  away.^ 

Ministerial  officers  ma}^  be  sued  in  case  for  any  breach  of 
duty,  whether  intentional,  or  malicious,  or  not.' 

An  action  on  the  case  may  be  brought  in  the  name  of  the 
principal,  for  a  false  representation  made  to  the  agent.* 

Case  will  lie  for  the  assertion  of  a  falsehood  with  a  fraud- 
ulent intent,  as  to  an  existing  fact,  where  a  direct,  positive  and 
material  injury  results  from  such  assertion."  And  it  will  lie 
for  a  deceit,  as  where  a  person  is  induced  to  purchase  land  by 
a  false  representation  that  a  certain  privilege  is  annexed  to 
the  land,  but  which  is  not  included  in  the  deed.' 

If  a  person  falsely  represents  himself  as  the  agent  of 
another,  and  authorized  to  receive  certain  money,  and  thereby 
obtains  the  money,  he  may  be  reached  by  a  special  action  on 
the  case  for  fraud.'  Fraud  or  deceit,  wherefrom  damage  re- 
sults, is  a  good  cause  of  action.*  Where  a  person  makes  a  false 
representation  to  another,  with  a  design  to  deceive  and  de- 
fraud him,  and  the  latter  enters  into  a  contract  with  a  third 
person,  relying  upon  the  representations,  and  sustains  an  in- 
jury thereby,  an  action  on  the  case,  in  the  nature  of  deceit, 
will  lie  at  the  suit  of  the  person  injured  against  the  person 
making  the  fraudulent  representations,  although  he  was  not 
a  party  to  the  contract  by  which  the  plaintiff  was  injured.' 

^Clutev.  Wiggins,  14  Johns.  175;  Van  Valserv.  Seeberger,  59111.  App. 

Hayward   v.   Mei-riU,    94    111.    349;  323. 

Perry  v.  Carmichael,  95  111.  519.  '  Duncan  v.  Niles,  32  111.  532. 

*  Hutchinson  V .  Peck,  5  Johns.  IQG;  ^  Upton  v.     Vail,    6   Johns.    181; 

Barber  v.  Amstead,  10  Ired.  530.  Barney  v.   Deioey,    13    Johns.   224; 

^  Keith  y.  Howard,   24  Pick.   292;  Duncan  \.  Niles,  32  111.  532;  Fames 

Spicer  v.  Cummings,   23  Pick.    224;  v.  Morgan,   37  111.    260;  Broii^n    v. 

Gates  V.  Neal,  23  Pick.  %0%;Abbott\.  Lobdell,  50  111.  App,  559;  People  v. 

Kimball,  19  Vt.  551.  Healey,  128  lU.  9. 

iRa7jmond  y.  Hoivland,  12  V^  end.  ^Weather ford     v.     Fishbach,     3 

176;  Ins.  Co.  v.  Hogan,  80  111.  35.  Scam.  173;   see  Low  v.  Martin,  18 

^Benton  y.  Pratt,    2  Wend.   384;  111.  290;  Fames  v.  Morgan,  37  111. 

Fames  v.  Morgan,  37  111.  260.  260.     See  observations  under  Form 

^Monell  V.  Welter,  13  Johns.  395;  No.  U4:,  post. 
see  Applebee  v.  Rumery,  28  111.  280; 


CASE.  629 

In  an  action  for  deceit  in  the  sale  of  a  horse,  what  the  con- 
sideration to  be  paid  was,  or  whether  it  was  paid  down  or  not, 
is  not  material.' 

Where  one  person  owns  the  ground  rooms  in  a  building, 
and  another  the  upper  stories,  the  latter  has  a  right  to  have 
his  portion  of  the  tenement  supported  by  the  division  wall  in 
the  lower  part;  and  the  removal  of  such  support  by  the  owner 
of  the  lower  part  of  the  building  is  such  an  infringement  of 
that  right  as  will  sustain  an  action  on  the  case  against  the 
wrong-doer." 

Where  a  person  borrows  a  horse  of  another,  for  use,  with- 
out compensation,  he  becomes  a  gratuitous  bailee,  and  is  liable 
for  an  injur}'-  to  the  horse  while  in  his  custody,  unless  he  has 
exercised  extraordinary  care.^ 

An  action  on  the  case  for  seduction  may  be  sustained,  not 
only  by  a  parent,  but  b\^  a  guardian,  master,  brother-in-law,  or 
other  person  standing  in  loco  parentis  to  the  person  seduced.^ 

A  party  is  liable  in  an  action  on  the  case  for  damage  done 
to  the  property  of  another  by  setting  fire  to  a  prairie." 

Case  lies  for  criminal  conversation  with  the  plaintiff's  wife,* 
or  he  may  sue  in  trespass,  at  his  election.' 

An  action  on  the  case  will  not  lie  for  improperly  causing  a 
writ  of  injunction  to  be  issued.  The  remedy  is  on  the  injunc- 
tion bond.' 

In  an  action  on  the  case  for  malicious  prosecution,  want  of 
probable  cause  must  be  shown.  The  existence  of  malice  is  not 
sufficient  to  raise  a  presumption  of  a  want  of  probable  cause, 
ihough  a  want  of  probable  cause  may  raise  a  presumption  of 
malice.  In  order  to  sustain  such  action,  there  must  be  proof 
both  of  malice  and  a  want  of  probable  cause.'   What  is  such  prob- 

'  Applehee  v.  Rumery,  28  111.  280.  '  Yundt  v.   Hartrunft,  41  III,  9; 

« McConnell  v.  Kibhe,  33  III.  175.  1  Chit.  PI.  128. 

3  Bennett  v.  O'Brien,  37  111.  250.  «  Gorton  v.  Broum,  27  111.  489. 

*  Ball  V.  Bruce,  21   111.    161;  see  ^  Leidig  y .  Rmrson,  1  Scam.  272; 

Anderson  v.  Ryan,  3  Gilm.  583.  Jacks  v.  StiinjJS07i,  13  111.  701;  Wade 

5  Burton  v.  McClellan,   2  Scam.  v.  Walden,   23  111.    425;   Murray  v. 

434.  Long,  1  Wertfl.  140;  Potter  v.  Searl, 

«  VanVactor  v.  J/cA'i/iip,  7 Blackf .  8  Cal.  217;  Barrett  v.  Spaids,  70  111, 

578.  408;  Ames  v.    Snider,   69    111.    376; 


630  CASE. 

able  cause  as  will  justify  the  prosecution  of  a  person  for  a  crim- 
inal offense,  is  a  question  of  law.  An  honest  belief  that  the  ac- 
cused is  guilty,  founded  on  circumstances  which  tend  to  show 
that  he  has  committed  a  criminal  offense,  negatives  the  idea 
of  a  want  of  probable  cause  for  the  prosecution.' 

An  action  on  the  case  for  malicious  prosecution  can  not  be 
brought  before  the  former  suit  has  been  legally  determined, 
and  it  must  be  averred  that  the  former  suit  terminated  in  the 
present  plaintiff's  favor." 

(See  observations  under  Form  No.  338, post.) 

Causing  Avater  to  flow  back  upon  the  land  of  another  is  such 
an  act  as  entitles  the  person  injured  to  his  action.  Although 
the  act  may  be  in  itself  lawful,  yet,  if  in  its  consequences  it 
necessarily  damages  the  property  of  another,  the  person  oc- 
casioning the  damage  may  be  compelled  to  make  reparation 
commensurate  with  the  injury  he  has  caused.' 

If  two  or  more  persons  are  jointly  concerned  in  a  particular 
act  which  occasions  injury  to  another,  they  may  be  sued 
jointly,  and  all  persons  who  co-operate  in  an  act  directly  caus- 
ing injury  are  jointly  liable  for  its  consequence,  if  they  act  in 
concert,  or  unite  in  causing  a  single  injury,  even  though  acting 
independently  of  each  other.* 

In  the  case  of  several  tort  feasors,  the  party  injured  may,  at 
his  election,  sue  one,  or  several,  or  all;  and  when  the  suit  is 
against  one  or  some  of  them,  but  not  against  all,  the  person 
or  persons  sued  have  no  right  to  complain.  And  so,  also, 
when  there  is  a  suit  against  several  tort  feasors,  the  dismissal 
of  the  action  against  one  or  a  covenant  not  to  sue  him  does 
not  bar  the  action  against  the  others.^     But  a  release  to  one  of 

Davis  V.  Wislier,   72  111.  262;    Calef         ^ Stout  v.  McAdams,  2  Scam.  67; 

V.  Thomas,  81  111.  478.  Nevinsv.  Peoria,  41  111.  502;  Gillham 

'  Jacks  V.  Stimpson,   13  111.  701;  v.  Madison,  49  111.  484;  see  R.  R.  Co. 

i^isZierv.  Forrester,  33  Penn.  St.  501;  v.  Hunter,  50  111.325;    Winkler  v. 

Potter  V.  Searl,  8  Cal.   217;  Harp-  Meister,  40  111.  349. 
hamv.  Wliitney,!!  111.  32;  Palmer        *  Machine  Co.  v.  Keifer,  134  111. 

V.  Ridmrdson,  70  111.  544;  Brown  v,  481. 

Smith,  83  111.  291;  see  observations         5  Chicago  v.  Babcock,  143  111.  358; 

under  Form  No.  338,  post.  j^  j^   q^   ^.^  ^^^^^  1^3  jl,   g.  ^^-^^^^ 

'^Feazlev.  Simpson,  1  Scam.  30;  3  ^ ,    oo  th    a        an^    tt 

Chit  PI.  610,  n,  ^-  ^^'^^'  ^^  ^"'  ^PP-  ^^^'  ^""^^  ^- 


CASE. 


631 


several  joint  tort  feasors  is  a  release  to  all,  and  an  accord  and 
satisfaction  with  one  of  them  is  a  bar  to  an  action  against  the 
others.' 

Negligence. — One  can  not  recover  for  an  injury,  even  from 
the  gross  negligence  of  another,  unless  he  is  free  from  culpa- 
ble negligence  on  his  own  part.^  The  doctrine  of  comparative 
negligence  is  no  longer  the  law  in  Illinois,  and  in  order  to  en- 
title the  plaintiff  to  recover  in  an  action  for  negligence,  he  need 
only  show  that  at  the  time  of  the  injury  he  was  in  the  exer- 
cise of  ordinary  care,  and  that  the  defendant  was  guilty  of  such 
negligence  as  caused  the  injury.' 

Whether  there  was  negligence  or  want  of  care  in  whatever 
degree,  in  either  of  the  parties,  is  a  question  of  fact,  to  be  de- 
termined by  the  jury;  and  whether  the  circumstances  attend- 
ing the  transaction  constitute  such  negligence  or  want  of  care, 
will  not,  though  admitted,  be  decided  by  the  court  as  a  matter 
of  law,  but  w411  be  left  to  the  jury,  as  evidence  for  them  to 
pass  upon.  This  is  especially  true  where  the  circumstances 
in  question  are  but  part  of  the  evidence  in  the  case.* 

It  is  only  when  the  conclusion  of  negligence  necessarily  re- 


Roche,  94  N.  Y.  329;  Sloan  v.  Her- 
rick,  49  Vt.  327;  Bloss  v.  Plymale,  8 
W.  Va.  893. 

'  Cooley  on  Torts;  Turnery.  Hitch- 
cock, 20  Iowa  310;  OUpatrick  v. 
Hunter,  24  Me.  18;  Ellis  v.  Bitzer,  2 
Ohio  89;  Metz  v.  Soule,  40  Iowa  230; 
Branson  v.  Fitzpatrick,  1  Hill  185; 
Neiimian  v.  Fowler,  37  N.  J.  89;  Karr 
V.  Barstow,  24  111.  580;  City  v.  Bab- 
cock,  143  111.  358;  Wagner  v.  St. 
Yds.,  41  111.  App.  410;  Vigeant  v. 
Scully.  35  111.  App.  46. 

^R.  R.  Co.  V.  Elliott,  98  III.  481; 
Id.  V.  Dimick,  96  III.  42;  Id.  v. 
Patterson,  93  111.  290;  Stratton  v. 
R.  R.  Co.,  95  111.  25;  Austin  v.  R.  R. 
Co.,  91  111.  35;  R.  R.  Co.  v.  Wallace, 
110  111.  114;  Peoria  v.  Simpson,  110 
111.  294;  R.  R.  Co.  v.  Londergan,  118 
111.41;  Id.y.  ireZs/i,  118I1I.  572;  Gas 
Co.  V.  O'Brien,  118  111.  174;  R.  R.  Co. 
V.  Bragioner,  119  111.  51;  Titans.  Co. 


V.  Shacklet,  119  111.  232;  Penn.  Co.  v. 
Marshall,  119  111,  399;  R.  R.  Co.  v. 
Clayberg,  107  III.  644:  Chicago  v. 
Stearn&i,  105  111.  554;  Cousenv.  Ely, 
37  111.  338;  R.  R.  Co.  v.  Johnson,  135 
111.  647. 

3  Coal  Co.  V.  Holmqiiist,  152  111. 
581;  Cityv.  Daugherty,  153  111.  163; 
Village  v.  Moore,  124  111,  133;  iJ,  R. 
Co.  V.  Matheuys,  153  111.  268;  R.  R. 
Co.  V.  Meixner,  160  111.  320. 

■»  Beers  v.  R.  R.  Co.,  19  Conn,  566; 
2  Am.  R.  R.  Cases  114;  Broicn  v,  R. 
R.  Co.,  31  Barb.  (N,  Y.)385;  see  iJ. 
R.  Co.  V.  Weldon,  52  111.  290;  Id.  v. 
Baches,  55  111.  380;  3Iyers  v.  R.  R. 
Co.,  113  111.  389;  Penn.  Co.  v.  Frana, 
112  111.  405;  Canning  Co.  v.  Lines, 
125  111.  410;  R.  R.  Co.  v.  Parker,  131 
111,  564;  Id.  V.  Davis,  130  111.  149; 
Id.  \.  Lane,  130  III.  122;  Id.  y.Voel- 
kers,  129  III.  552;  Id.  v.  Warner,  123 
111.  38. 


G32  CASE. 

suits  from  the  statement  of  fact,  that  the  court  can  be  called 
upon  to  say  to  the  jury  that  a  fact  establishes  negligence  as  a 
matter  of  laAv;  and  if  the  conclusion  of  negligence,  under  the 
fact  stated,  may  or  may  not  result,  or  shall  depend  on  other 
circumstances,  the  question  is  one  of  fact  for  the  jury.  Neg- 
ligence can  not  be  conclusively  established  by  a  state  of  facts 
upon  which  fair  minds  may  well  differ.' 

In  an  action  for  an  injury  to  the  plaintiff,  resulting  from 
the  negligence  of  the  defendant,  the  care  required  of  the 
plaintiff  is  that  degree  of  care  which  may  reasonably  be  ex- 
pected from  one  in  his  situation,  that  is  reasonable  care;  and 
if  this  degree  of  care  be  exercised  by  him,  the  want  of  a  less 
degree  will  not  preclude  him  from  a  recovery  for  the  negli- 
gence of  the  defendant.  And  what  will  be  deemed  reasonable 
care  in  any  case  will  depend  on  the  peculiar  circumstances  of 
the  particular  case.''  Although  the  plaintiff  may  be  charge- 
able with  some  degree  of  negligence,  yet  if  it  is  but  slight  as 
compared  with  that  of  the  defendant,  the  plaintiff  can  recover, 
and  this  rule  holds  even  where  the  slight  negligence  of  the 
plaintiff  in  some  degree  contributed  to  the  injury." 

The  law  is  well  settled  that  in  actions  based  on  negligence 
the  allegations  of  the  declaration  and  the  proofs  must  agree. 

»  R.  R.  Co.  V.  O'Connor,  119  111.  v.  Triplett,  38  111.  482;  Id.  v.  Pane, 

586;  Id.  V.  Voelkers,  129  111.  540;  Id.  49    111.    499;    Id.  v.     Gretzner,    46 

V.  Uine,  130111.  116;  Id.  v.  Johnson,  111.  74;  Id.  v.   Todd,  36  111.  409;  Id. 

135X11.  641;  Id.  v.  Robinson,  127  111.  v.    Harris,  54  111.  528;  Id.  v.   Pon- 

12;   Id.  V.  Lonis,  138  111.  9;  Id.  v.  dram,  51  111.  333;  Id.   v.  Gravey,  55 

Ouska,  151  111.  232.  111.  379;  Id.  v.  Hart,  87  111.  529;  Id. 

'■'  Beers  V.  R.  R.  Co.,  19  Conn.  566;  v.  Parker,  131  111.  565;  C.  D.  F.  Co. 

2  Am.  R.  R.  Cases  114;  Bird  v.  Hoi-  v.  Van  Dam,  149  111.  337;   R.  R.  Co. 

troofc,  4  Bing.  628;  R.  R.  Co.  v.  Haz-  v.  Bodemer,  139  111.  596;  W.  S.  Co. 

zard,2Q  111.  373;  Id.  v.  Fay,  16  111.  v.   Whalen,   151   111.  472;  Harris  v. 

558;  Coursen  v.  EJy,  37  111.  338;  R.  Shebeck,    151    111.    287;    Goldie    v. 

R.  Co.  V.  Adler,  129  111.  340;  Td.  v.  Warner,    151  111.    551 ;      Village  v. 

Wilson,  133   111.  60;  Id.  v.  Hutchin-  Brooks,  150  111.  97;  City  v.   Smith, 

son,  120  111.  587;  Cartervillev.  Cook,  Ibid.  169;  Partlowv.  R.R.  Co.,  Ibid. 

129  111.  155^  R.    R.    Co.   v.   Parker,  321;  R.    R.  Co.   v.    Baddley,   Ibid. 

131  111.  573;  Id.  v.  Havelick,  131  111.  328;    Coal  Co.  v.  Bruce,  Ibid.  449; 

180.  Ry.  Co.  V.  Hessions,  150  111.  546;   B. 

3  Coursen  v.  Ely,   37  111.  338;  see  R.  Co.  v.  Eldridrje,  151  111.  542. 
R.  R.  Co.  V.  Hogarth,  38  111.  370;  Id. 


CASE.  633 

The  plaintiff  can  not  charge  in  his  declaration  a  specific  act 
of  negligence,  and  succeed  on  the  trial  by  proving  another  act 
of  negligence  wholly  different  from  that  charged. '  In  deter- 
mining the  degree  of  negligence  of  a  person,  the  jury  should 
take  into  consideration  his  capacity.  A  child  can  not  be  re- 
quired to  exercise  as  much  care  and  caution  as  a  person  of 
mature  years,  but  only  such  care  as  a  person  of  his  age  and 
discretion  would  naturally  use.  Ordinary  neglect  as  to  a 
person  of  full  age  and  capacity,  might  be  gross  negligence  as 
to  a  child.^ 

COMMENCEMENT    OF    THE    ACTION. 

The  action  is  commenced  b}'"  suing  out  a  summons,  or  a 
capias  ad  respondendum;  and  if  the  plaintiff  is  a  non-resident, 
security  for  costs  must  be  filed.' 

DECLARATIONS    IN   CASE. 

For  the  particular  mode  of  framing  declarations  in  this 
action,  the  pleader  is  referred  to  the  precedents  here  given, 
and  the  observations  thereunder.  As  a  general  rule,  it  may 
be  laid  down  that  the  declaration  should  set  forth,  by  way  of 
inducement,  the  circumstances  under  which  the  injury  was 
committed,  and  should  then  set  forth  the  injury,  and  the  con- 
sequential damages  resulting  therefrom  to  the  plaintiff.* 

Counts  in  trover  may  be  joined  with  counts  in  case;  ^  tres- 
pass and  case  may  also  be  joined.* 

No..  327.    Against  a  railroad  company,  for  negligently  Thinning  train 
across  highway,  whereby  plaintiff  was  injured,  etc. 

In  the Court. 

Term,  18  — . 

State  of  Illinois,    ) 

County  of  ,      \  set.     A.  B.,  plaintiff,  by  E.  F.,  his  attorney,  complains 

of  the railroad  company,  defendant,  of  a  plea 

of  trespass  on  the  case:     For  that  whereas  the  plaintiff,  on,  etc.,  in,  etc., 

'  R.   R.   Co.   V.  Dickson,   143  111.  33  111.  App.  452;  Id.   v.   Robinson, 

368;    Steamesv.  Ready,  \^^l\\.\2^.  127111.13. 

2  Kerr  v.  Forgue,  54   111.  482;    R.  ^  Ante,  p.  13. 

R.  Co.  V.  Deicey,  26  111.  255;  Robin-  *  1  Chit.  PI.  327. 

son  V.   Cone,  22   Vt.    213;   Birge  v.  ^  1  Chit.  PI.  181;  see  Hays  v.  Bor- 

Gardner,   19    Conn.    507;     City   v.  ders,  1  Gilm.  46;  Brady  v.  Spurck, 

Keefe,  114  111.  222;  Scott  v.  McMena-  27  lU.  479. 

min,  51  111.  App.  121;  R.  R.  Co.    v.  «  Krug  v.  Ward.  77  111.  603;  Bar- 
Ryan,   131   111.  477;  R.  R.    Co.   v.  ker  v.  Koozier,  80  111.  205. 
Slater,  129  111.   100;   Id.  v.  Wilcox, 


634  CASE. 

was  rilling  in  a  certain  carriage,  then  and  there  drawn  by  a  certain  horse, 
upon  and  along  a  (certain  public  highway  there  (to  wit,  a  certain  public 

highway  leading  from to ,)  at  a  certain  crossing  of  the  said  public 

highway  and  a  certain  railroad  of  the  defendant,  in  the  county  of 

aforesaid;  and  the  defendant  was  then  and  there  possessed  of  a  certain 
locomotive  engine,  with  a  certain  train  of  cars  then  attached  thereto,  which 
said  locomotive  engine  and  train  were  then  and  there  under  the  care  and 
management  of  divers  then  servants  of  the  defendant,  who  were  then  and 
there  driving  the  same  upon  and  along  the  said  railroad,  near  and  towards 
the  crossing  aforesaid:  And  while  the  plaintiff  with  all  due  care  and  dili- 
gence, was  then  and  there  riding  in  the  said  carriage  across  the  said  rail- 
road, at  the  said  crossing,  upon  the  said  public  highway  there,  the  defend- 
ant then  and  there,  by  its  said  servants,  so  carelessly  and  improperly  drove 
and  managed  the  said  locomotive  engine  and  train,  that  by  and  through 
the  negligence  and  improper  conduct  of  the  defendant,  by  its  said  servants, 
in  that  behalf,  the  said  locomotive  engine  and  train  then  and  there  ran  and 
struck  with  gre^t  force  and  violence  upon  and  against  the  said  carriage,  (*) 
and  thereby  the  plaintiff  was  then  and  there  thrown  with  great  force  and 
violence  from  and  out  of  the  said  carriage  to  and  upon  the  ground  there, 
and  was  thereby  then  and  there  gi-eatly  bruised,  hurt  and  wounded,  and 
divers  bones  of  his  body  were  then  and  there  broken,  and  he  became  and 
was  sick,  sore,  lame  and  disordered,  and  so  remained  for  a  long  space  of 
time,  to  wit,  hitherto,  during  all  which  time  he,  the  plaintiff,  suffered  great 
pain,  and  was  hindered  and  prevented  from  attending  to  and  transacting 
his  affairs  and  business;  and  by  means  of  the  premises  the  plaintiff  was 
forced  to,  and  did  then  and  there  lay  out  divers  sums  of  money,  amounting 

to dollars,  in  and  about  endeavoring  to  be  cured  of  his  said  wounds, 

hurts  and  bruises,  occasioned  as  aforesaid;  and  also  by  the  running  and 
striking  of  the  said  train  upon  and  against  the  said  carriage  as  aforesaid, 
at  the  time  and  place  in  that  behalf  aforesaid,  the  said  carriage,  then  of  the 

value  of dollars,  and  whereof  the  plaintiff  was  then  and  there  lawfully 

possessed,  was  crushed  and  destroyed,  and  then  and  there  became  and  was 
rendered  of  no  use  or  value  to  the  plaintiff. 

(J.  count  on  the  statute,^  for  not  ringing  a  hell,  etc.,  may  he  added,  if 
deemed  expedient— see  form  S2S,  concluding  the  declaration  as  follows:) 

Wherefore  the  plaintiff  says  that  he  is  injured,  and  has  sustained  damage 
to  the  amount  of dollars,  and  therefore  he  brings  his  suit,  etc. 

The  words  in  italics,  in  the  above  form,  would  seem  to  be 
unnecessary.  In  Hazzard's  case,  26  111.  373,  the  court  says 
that  "  his  (the  plaintiff's)  exercise  of  proper  care,  as  well  as  the 
negligence  of  the  defendant,  should  be  alleged  in  the  declara- 

»  Rev.  Stat.  (1893),  1116;  Rev.  Stat.  Slater,  139  111.  193;  Id.  v.  TutwUcr, 

(1895),    1200;  2  Starr  &  Curtis  1935;  16  111.  App.  199;  Id.  v.  Jemine,  16  111. 

see  Hays  v.  Borders,  1  Gilm.  46;  R.  App.  212;  Id.  v.  Felton,  24  111.  App. 

B.  Co.  v.  Dillon,  123  lU.  570;  Id.  v.  376. 


CASE.  635 

tion; "  but  in  Simmons'  case,  38  111,  242,  this  is  said  to  have 
been  dictum  merely;  and  the  precedents  given  in  the  books  do 
not  contain  any  such  allegation. 

It  is  a  well  settled  rule  that  the  pleader  is  required  to  set 
out  the  particular  facts  constituting  the  negligence  complained 
of  only  so  far  as  they  appear  to  be  properly  within  his  knowl- 
edge.' Where  the  act  upon  which  the  negligence  is  predi- 
cated is  of  a  simple  character,  an  allegation  of  an  absence  of 
care  in  its  performance  becomes  reasonably  intelligible,  and 
hence  it  is  not  necessary  to  specify  in  a  declaration  the  acts  of 
omission  or  commission  which  constituted  the  negligence  of 
the  defendant,  which  is  the  basis  of  the  action." 

A  railroad  company  and  a  traveler  on  the  highway  have 
correlative  rights,  and  each  must  use  proper  caution  where 
there  is  a  danger  of  a  conflict;  neither  has  a  superior  right, 
except  as  it  results  from  the  difficulties  and  necessities  of  the 
case.^  There  is  no  distinction  between  railroads  and  ordinary 
highways  in  regard  to  the  degree  of  care  which  the  law 
requires  on  the  part  of  those  who  have  the  direction  or  man- 
agement of  vehicles  upon  them.* 

A  railroad  company  is  responsible  for  an  injury  occasioned 
by  want  of  proper  care  and  prudence  on  the  part  of  its  serv- 
ants in  the  management  of  a  train  which  is  under  their  exclu- 
sive care,  direction  and  control,  although  the  train  belongs  to 
another  company.  It  has  been  held  in  Massachusetts  that  if 
such  injury  results  from  the  negligence  of  another  railroad 
company  which  has  a  joint  right  with  the  defendant  to  use  the 
defendant's  track,  under  a  lease  from  the  defendant,  and  which 
is  accordingly  running  trains  over  the  defendant's  road  on  its 
own  account,  the  defendant  is  not  responsible.*     In  Illinois  it 

"  Yoxing  v.  Lynch,  66  Wis.  514;  IL  v.  Hixon,  110  Ind.  235;  Fittsy.Wal- 

R.  Co.  V.  Van  Home,  38  N.  J.  L.  133;  deck,  51  Wis.  567. 

R,  R.  Co.  V.  Jennings,  157  III.  274.  ^  R.  R    Co.    v.  Dill,  22  111.   265; 

*i2.  R.   Co.  V.  Jennings,  157  111.  Walker    v.   Herron,   23  Texas  55; 

274;  Id.  V.  Van  Home,  38  N.  J.  L.  Dascomb  v,  R.  R.  Co.,  27  Barb.  (N. 

143;  Id.  V.  Keiley,  23  Ind.  133;  Clark  Y.)  221;  see  R.  R.  Co.  v.  Geddis,  33 

V.  R.  R.  Co.,  28  Minn.  69;  Hawker  111.  304. 

V.  R.  R.  Co.,  15  W.  Va.  628;  Bems  *  Beers  v.  R.  R.  Co.,  19  Conn.  566; 

V.  Coal  Co.,  37  W.  Va.  285;  R.  R.  Co.  2  Amer.  R.  R.  Cas.  117. 

^Fletclier  v.  R.  R.,  1  Allen  9. 


636  CASE. 

is  held  that  a  railroad  company  can  not  release  itself  from 
liability  by  leasing  its  road  to  other  parties;  and  that  con- 
tractors for  the  construction  of  a  railroad  are  the  servants 
of  the  company,  and  for  their  tortious  acts,  while  about  the 
comjmny's  business,  the  company  is  liable.' 

It  is  negligence  for  a  deaf  person  to  drive  an  unmanageable 
horse  across  a  railroad  track  when  a  train  is  approaching.  It 
is  his  duty  to  keep  a  lookout  and  avoid  the  danger;  and  it  is 
no  excuse  that  the  horse  rushed  upon  the  track  near  the  cross- 
ing, or  was  driven  there  to  avoid  the  engine."  But  the  fact  that 
a  person  who  was  killed  by  a  railroad  train,  at  a  crossing,  was 
partially  deaf,  will  not  excuse  the  company  for  not  having 
sounded  the  whistle,  or  rung  the  bell,  from  the  point  required 
by  the  statute.^ 

Persons  crossing  a  railroad  track  are  bound  to  know  that  such 
an  undertaking  is  dangerous,  and  they  must  take  all  proper 
precautions  to  avoid  accidents  in  so  doing,  or  they  can  not 
recover  for  injuries  received.*  "Where  a  drunken  man  was 
driving  towards  a  railroad,  while  a  train  was  coming,  in  full 
view,  and  notwithstanding  the  shouting  of  persons  within 
hearing  distance,  he  attempted  to  cross  the  track  and  was 
injured,  it  was  held  that  he  could  not  recover  for  injuries 
received.* 

The  proprietors  of  railroads,  when  running  their  engines 
over  crossings,  are  bound  to  exert  reasonable  care  and  dili- 
gence to  prevent  injury  therefrom  to  travelers  on  the  road 
crossed;  and  whether  such  care  and  diligence  have  been  em^ 

1 JS.  R.  Co.  V.  Whip2)le,  22111.  106;  88;  Ry.  Co.  v.  Zafflnger,  107111.  199; 

R.  R.  Co.  V.  McCarthy,  20  111.  385;  Ry.  Co.  v.  Clayberg,  107  111.  644. 

Ry.  Co.  V.  Dunbar,  20  111.  623;   see  ^  R.  R.  Co.  v.  Gretzner,  46  111.  74; 

Hinde  v.  Nav.  Co.,  15  111.  72;  Lesher  R.  R.  Co.  v.  Fears,  53  111.  115;  R.  R. 

V.  Nav.  Co.,  14  111.  85;  R.  R.  Co.  v.  Co.  v.  Sweeney,  52  111.   325;   see  R. 

Kanouse,  39  111.  272;    R.   R.    Co.  v.  R.  Co.  v.   Middlesworth,  43   111.  64; 

Rumbold,  40  111.  143.  R.  R.  Co.  v.  Baches,  55  111.  380i 

2i2.  R.  Co.  V.  Buckner,  28  111.  299;  *  Ry.  Co.  v.  Riley,  47  111.  514;  see 

R.  R.  Co.  V.   Goddard,   72  111.  567;  R.    R.    Co.   v.  Robinson,   8  Wright 

R.  R.  Co.  V.  Bell,  70  111.  102.  (Penn.)  175;  R.  R.  Co.  v.   Heilman, 

3  R.  R.  Co.  V.  Tinjilett,  38  111.  482;  13  Wright  (Penn.)  60;   Steves  v.  R. 

see  R.  R.  Co.   v.    McKean,   40   111.  R.  Co.,  18  N.  Y.  422;   Brooks  v.  R. 

218;  R.  R.  Co.  v.  Harwood,  80  111.  Co.,   25    Barb.   600;   R.   R.    Co.  v. 

Hutchinson,  47  111.  408. 


CASE.  637 

ployed  in  a  particular  case,  is  a  question  of  fact,  to  be  decided 
by  the  jury  upon  all  the  circumstances.' 

A  compliance  with  the  provisions  of  a  statute  respecting 
the  putting  up  of  notices  at  railroad  crossings,  and  the  ringing 
of  a  bell  when  engines  are  passing  over  the  same,  will  not 
exempt  the  proprietors  of  a  railroad  from  their  obligation  to 
use  reasonable  care  and  diligence  in  other  respects  when  ruli- 
nins:  their  eno^ines  over  crossino-s,  if  the  circumstances  of  the 
case  render  the  use  of  other  precautions  reasonable.^ 

An  omission  to  ring  a  bell  or  sound  a  whistle  at  a  crossing 
of  a  public  road,  as  required  by  the  statute,  is  negligence  prima 
facie  on  the  part  of  a  railroad  company.^  For  a  case  where 
suit  was  brought  against  a  railroad  company  for  injuries  re- 
ceived by  the  plaintiff  from  the  explosion  of  the  boiler  of  one 
of  the  company's  engines — such  explosion  being  held  evidence 
priTna  facie  of  negligence — see  49  111.  234,  and  55  111.  194, 

In  Avhat  county  suit  may  be  brought. — By  the  statute  of 
Illinois,  "actions  against  a  railroad  company  may  be  brought 
in  the  county  where  its  principal  office  is  located,  or  in  the 
county  where  the  cause  of  action  accrued,  and  into  or  through 
which  its  road  may  run."  * 

No.  328.     On  the  statute,  *  against  railroad  company,  for  not  ringing  hell, 
etc.,  at  crossing,  whereby  plaintiff  uxis  injured,  etc 

{Commoice  as  in  last  precedent.)  For  that  whereas  the  defendant,  on,  etc. , 
in  etc.,  was  the  owner  of  and  used  and  operated  a  certain  railroad  extend- 
ing through  a  part  of  the  county  aforesaid,  which  said  railroad  then  crossed 
a  certain  public  highway  there,  to  wit  {liere  describe  the  highway,  by  name, 
location  or  termini,)  at  a  certain  place  in  the  said  public  highwa}^  (here 
describe  tlie  place  as  nearly  as  may  be);  and  so  being  the  owner  of  and 
using  and  operating  the  said  railroad  as  aforesaid,  the  defendant  then  and 
there  drove  a  certain  locomotive  engine  upon  and  along  the  said  railroad, 
up  to,  upon  and  across  the  said  public  highway,  at  the  said  crossing  of  the 
same  and  the  said  railroad;  and  in  so  doing  no  bell  of  at  least  thirty  pounds' 

^Penna.  Co.  v.  Conlan,  101  III.  93;  see  R.  R  Co.  v.  Swearingen,  33  111. 

M.  F.  Co.  V.  Abend.  107  111.  44.  290;  R.  R.  Co.   v.  Williams,  77  111. 

*  Bradley  v.  R.  R.,2  Cush.  (Mass.)  354. 

539;  1  Am.  R,  W.  Cases,  457;  R.  R.  ^2  Starr  &  Curtis  1935;  Rev,  Stat. 

Co.  V.  Baclies,  55  111.  379.  (1893)  1116;  Rev.    Stat.  (1895)   12(X); 

^R.  R.  Co.v.  Terhune,  50  111.  151.  R.  R.  Co.  v.  DamereU,   81    111.   4.50; 

*2  Starr  &  Curtis,  1773;  Rev.  Stat.  R.  K  Co.  v.  Siltman,  88  111.  529. 
(1895)  1155;  Rev.  Stat.    (1893)    1071; 


63S  GASE. 

weight,  or  steam  whistle,  placed  on  the  Said  locomotive  engine,  was  rung 
or  whistled  by  the  engineer  or  fireman  thereof,  at  the  distance  of  at  least 
eighty  rods  from  the  said  crossing,  and  kept  ringing  or  whistling  until  the 
said  crossing  was  reached  by  the  said  locomotive  engine,  but  therein  the 
defendant  wholly  failed,  and  made  default,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided:  By  means  and  in  consequence  of 
which  default  and  neglect  of  the  defendant,  as  aforesaid,  the  said  locomo- 
tive engine  then  and  there  ran  and  struck  with  great  force  and  violence 
upon  and  against  a  certain  carriage,  then  and  there  drawn  by  a  certain 
horse,  in  which  said  carriage  the  plaintiff  was  then  with  all  due  care  and 
diligence  riding  upon  the  said  public  highway,  at  the  said  crossing;  {pro- 
ceed in  the  same  manner  as  in  the  last  precedent,  from  the  asterisk). 

By  the  common  law  and  independent  of  the  statute  it  is  the 
duty  of  those  having  charge  of  a  train  to  give  notice  of  its 
approach  at  all  points  of  known  danger.  Where  the  remedy 
by  the  statute  is  cumulative  and  differs  from  that  given  by 
the  common  law,  and  the  relief  given  by  the  statute  is  sought, 
the  pleader  must  manifest  that  purpose  or  intent  by  apt  words 
of  reference  to  the  statute,* 

No.  329.    Against    street   raihcay   company    for   improperly  managing 
cable  motor  whereby  plaintiff  was  injured.'^ 

{Commence  as  in  precedent  No.  337,  ante.)  For  that  whereas,  the  plaint- 
iff on,  etc.,  in  etc.,  was  riding  in  a  certain  carriage,  then  and  there  drawn 

by  a  certain  horse,  which  was  driven  by  plaintiff,  upon   and  along 

street,  a  public  highway,  in  said  city  of ,  and  the  defendant  was  then 

and  there  possessed  of  a  certain  motor  or  grip-car  used  by  said  defendant 

to  propel  certain  passenger  cars  known  as  street  cars  along  and  on  said 

avenue  by  means  of  a  wire  rope  or  endless  cable  and  the  said  motor  car  had 
then  and  there  attached  thereto,  a  train  of  said  passenger  cai's,  which  said 
motor  and  train  of  said  passenger  cars  were  then  and  there  under  the  care 
and  management  of  drivers  then  servants  of  the  defendant  who  were  then 

and  there  driving  the  same  upon  and  along  the  said street  at  or  near  the 

intersection  of avenue  and  said street  in  said  city  of aforesaid, 

and  while    plaintiff  with  all  due  care  and  diligznce  was  then    and  there 

riding  in  the  said  carriage,  along  and  on  the  said street  at  or  near  its 

intersection  with  said avenue  as  aforesaid,  upon  the  said  public  high- 
way, the  defendant  then  and  there,  by  its  said  servants,  so  carelessly  and 
improperly  drove  and  managed  the  said  motor  and  train  of  cars,  that  by  or 
through  the  negligence,  mismanagement  and  unskillfulness  of  the  defend- 
ant, by  its  said  servants,  in  that  behalf,  the  said  motor  and  train  of  cars 
then  and  there  ran  into  and  struck  with  great  force  and  violence  upon  and 

»i2.  R.  Co.  V.  Dillon,  123  111.  570.  ^See  R.  R.  Co.  v.   Jennings,   157 

lU.  274 


CASE.  639 

against  the  carriage  (allege  damages  according  to  tJie  facts — see  precedents 
No.  327  and  32S  ante). 

The  driver  of  a  cable  or  electric  street  car  is  governed  by 
established  rules.  He  must  know  how  to  manage  the  motor; 
he  must  not  drive  it  at  an  unreasonable  rate  of  speed;  he  must 
keep  a  reasonably  careful  lookout  ahead  and  must  respect  the 
equal  rights  of  others  as  to  the  use  of  the  streets.' 

No.  330.    Against  a  railroad  company,  for  negligence  in  management  of 
train  whereby  plaintiff,  a  passenger,  was  injured. 

{Commence  as  in  No.  327,  ante.)  For  that  whereas  the  defendant,  on, 
etc.,  in.  etc.,  was  possessed  of  and  using  and  operating  a  certain  railroad 
extending  through  and  from,  etc.,  to,  etc.,  in  the  county  aforesaid,  with 
certain  trains  of  cars  running  thereon  for  the  conveyance  of  goods  and 
passengers,  for  reward;  and  the  plaintiff,  at.  etc.,  aforesaid,  then  became  a 
passenger  in  a  certain  train  of  the  defendant,  on  the  said  railroad,  to  be 
earned,  and  was  thereupon  accordingly  then  carried,  in  the  said  train,  from 
thence  to,  etc.,  aforesaid,  for  certain  reward  to  the  defendant  in  that  be- 
half: And  thereupon  it  then  became  and  was  the  duty  of  the  defendant, 
upon  the  arrival  of  the  said  train  at,  etc.,  aforesaid,  to  give  the  plaintiff  an 
opportunity  of  safely  alighting  therefrom,  and  then  and  there  to  stop  the 
said  train  a  reasonable  time  to  enable  the  plaintiff  so  to  alight  therefrom 
safely  as  aforesaid;  yet  the  defendant  did  not  regard  its  duty,  or  use  due 
care,  in  that  behalf,  but  on  the  contrary  thereof,  upon  the  arrival  of  the 
said  train  at,  etc.,  aforesaid,  on  the  day  aforesaid,  and  while  the  plaintiff, 
urith  all  due  care  and  diligence,  was  then  and  there  about  to  alight  there- 
from, the  defendant  carelessly  and  negligently  caused  the  said  train  to  be 
suddenly  and  violently  started  and  moved,  and  thereby  the  plaintiff  was 
then  and  there  thrown  with  great  force  and  violence  from  and  off  the  said 
train  to  and  upon  the  ground  there;  by  means  whereof,  then  and  there, 
one  of  the  legs  of  the  plaintiff  was  broken,  and  one  of  his  ankles  was  dis- 
located, and  he  was  otherwise  greatly  bruised,  hurt  and  wounded;  and 
thereby  the  plaintiff  was  obliged  to  and  did  then  and  there  lay  out  divers 

large  sums  of  money,  amounting  to dollars,  in  and  about  endeavoring 

to  be  cured  of  the  said  injuries  so  received  as  aforesaid;  and  also  by  means 
of  the  premises  the  plaintiff  then  and  there  became  and  was  sick,  lame  and 
disordered,  and  so  remained  for  a  long  time,  to  wit.  hitherto,  during  all 
which  time  the  plaintiff  suffered  great  pain,  and  was  hindered  and  pre- 
vented from  transacting  and  attending  to  his  business  and  affairs,  and  lost 
and  was  deprived  of  divers  great  gains  and  profits  which  he  might  and 
otlierwise  would  have  made  and  acquired:  To  the  damage  of  the  plaintiff 
of dollars,  and  therefore  he  brings  his  suit,  etc.^ 

^Ey.  Co.  V.  Jennings,  157  111.  274.       v.  Coss,  73  111.  394:  Id.  v.  Mnmford., 

«See  R.  R.  Co.  v.  Hazzard,  26  HI.       97  111.  560;  Id.  v.  TT7/.so7;.  6;?  111.  167; 

373;  Id.  V.  Simmons,  38  111.  242;  Id.      Id.  v.  MUls,  105  111.  63;  Id.  v.  Amol, 


640  CASE. 

As  to  the  avermont  of  due  care  and  diligence  on  the  part  of 
the  phiintiif,  see  the  remarks  under  form  No,  337,  ante. 

It  has  been  held  in  a  number  of  cases  that  it  is  negligence 
for  a  passenger  to  get  on  or  off  a  train,  of  which  the  motive 
power  is  steam,  while  the  cars  are  in  motion.' 

The  rule,  however,  is  relaxed  when  applied  to  horse  cars  or 
street  railways." 

No.  331.    Against  a  railroad  comjxiny,  for  damage  caused  by  fire  from 

engine.^ 

{Commence  asin  No.  327,  ante.)    Foi*  that  whereas  the  plaintiff,  on,  etc., 

was  the  owner  of stacks  of  wheat,  containing  a  large  quantity,  to  wit, 

,  bushels  of  wheat,  then  on  his  farm  in  the  township  of ,  in  the 

county  aforesaid;  and  the  defendant  was  before  that  time  and  then  pos- 
sessed of  and  using  and  operating  a  certain  railroad  leading  from,  etc.,  to 
etc.,  and  running  through  the  plaintiff's  said  farm,  and  was  also  possessed 
of  the  land  to  the  said  raikoad  there  appertaining,  the  same  being  a  strip  of 
land  of  about  the  width  of  one  hundred  feet,  to  wit,  of  the  width  of  fifty 
feet  on  each  side  of  the  middle  of  the  said  railroad,  and  extending  through 
the  said  farm  :  And  although  it  was  before  that  time  and  then  the  duty  of 
the  defendant  to  keep  the  said  strip  of  land  free  from  diy  grass  and  weeds, 
so  that  fire  from  the  locomotive  engines  and  trains  of  the  defendant,  on  the 
said  railroad,  would  not  by  means  of  such  dry  grass  and  weeds  spread  and 
be  communicated  therefrom  to  the  said  farna  of  the  plaintiff;  yet  the  defend- 
ant, not  regarding  its  duty,  or  using  due  care,  in  that  behalf  did  not,  nor 
would  keep  tlie  said  strip  of  land  free  from  dry  grass  and  weeds  as  afore- 
said, but  on  the  contrary  thereof  before  that  time  negligently  suffered  large 
quantities  of  such  dry  gi-ass  and  weeds  to  accumulate,  and  then  negligently 
suffered  the  same  to  remain  on  the  said  strip  of  land;  by  means  whereof 
fire  then  and  tliere  emitted  and  thrown  from  a  certain  locomotive  engine 
and  train  of  the  defendant,  on  the  said  railroad,  then  and  there  ignited  the 
said  dry  grass  and  weeds,  and  spread  and  was  communicated  from  and  by 
the  same  to  and  upon  the  said  farm  and  the  said  stacks  of  wheat  of  the 
plaintiff,  and  thereby  the  said  stacks  of  wheat,  being  then  and  there  of  the 

value  of dollars,  were  then  and  tliere  consumed,  and  wholly  lost  to  the 

plaintiff. 

(Second  count.)  And  whereas  also  the  plaintiff,  on  the  day  aforesaid, 
was  the  owner  of other  stacks  of  wheat,  containing  a  large  quantity, 

144  111.   261;   Id.  v.  Cook,   145  111.  Jd  v.  Scafes,  90  IlL  586;  Id.x.  Meix- 

551.  ner,  160  111.  320. 

'  R.  R.  Co.  V.  Lutz,  84  III.  598;  Id.  » R.  R.  Co.  v.  Buck,  93  Tnd.  346; 

V.  Stratton,  78  111.  88;  Id.  v.  CMm-  Stonerv.  Penn.  Co.,  98  Ind.  384;  R. 

hers,  71  111.  519;  Id.  v.  Slattoti,   .54  R.  Co.  v.  Mei-acner,  160  lU.   320,  and 

111.  133;  Id.  V.  Randolph,  53  111.  510;  cases  there  cited. 

»i2,  R.  Co.  v.  Ccrrn,  71  lU.  493. 


CASE.  641 

to  wit, busheTs  of  wheat,  then  in  a  certain  close  of  the  plaintiff,  in  the 

township  and  county  aforesaid;  and  the  defendant  was  then  and  there 
possessed  of  and  operating  a  certain  other  railroad  extending  along  and 
adjoining  the  said  close,  and  was  then  and  there  running  divers  locomo- 
tive engines  on  the  last  mentioned  railroad;  and  while  a  certain  locomotive 
engine  of  the  defendant,  and  under  its  control,  was  then  and  there  passing 
upon  the  same  railroad,  along  the  said  close,  divers  sparks  and  brands  of 
fire  then  and  there  escaped  and  were  thrown  from  the  same  locomotive  en- 
gine, by  and  through  the  mere  carelessness  and  negligence  of  the  defend- 
ant, and  set  fire  to  certain  stubble  then  in  the  said  close,  and  thereby  fire 
spread  and  was  communicated  to  the  last  mentioned  stacks  of  wheat  of 
the  plaintiff,  whereby  the  same  stacks  of  wheat,  being  then  and  there  of 

the  value  of dollars,  were  then  and  there  consumed,  and  wholly  lost  to 

the  plaintiff. 

Wherefore  the  plaintiff  says  that  he  is  injured,  and  has  sustained  dam- 
age to  the  amount  of dollars,  and  therefore  he  brings  his  suit,  etc. 

The  statute  provides  that  in  all  actions  for  damages  occa- 
sioned by  fire  communicated  by  a  locomotive  engine,  the  fact 
that  the  fire  was  so  communicated  shall  be  'prhna  facie  evi- 
dence to  charge  the  defendant  with  negligence.* 

Evidence  that  the  railroad  company  has  used  and  operated 
the  road  for  years,  will  sustain  an  averment  in  the  declaration 
that  the  company  is  the  owner  of  the  road." 

A  railroad  company  is  required  to  use  the  same  diligence  in 
removing  dry  grass  and  weeds,  and  other  combustible  materials, 
from  exposure  to  ignition  by  fire  from  trains,  that  a  cautious, 
prudent  man  would  use  in  respect  to  combustible  materials  on 
his  own  farm,  if  exposed  to  the  same  hazard  from  such  ma- 
terials.^ 

Where  fire  is  communicated  to  a  building,  through  the 
negligence  of  a  railroad  company,  the  owner  can  not  recover 
for  the  loss  of  property  or  money  which  he  could  easily,  and 
without  danger,  have  saved  from  destruction,* 

It  is  the  duty  of  all  railroad  corporations  to  keep  their  right 
of  way  clear  from  all  dead  grass,  dry  weeds,  or  other  com- 

'  2  Starr  &  Curtis  1949;  Rev.  Stat.  355;  Id.  v.  Com,  71   111.  493;  Id,   v. 

(1893)  1132;  Rev.  Stat.  (1895)  1206;  see  Motherspaugh,  71  111.  572. 

R.  R.  Co.  V.  Spencer,  149  111.  97;  Cal-  *  IL  R.  Co.  v.  Mills,  42  111.  407. 

lawayv.  Sturgeon,  58  111.  App.  159;  ^ij.  R.  Co.  v.  JlfiZZs,  42  III.  407;  Ry. 

Bass  V.  R.  R.  Co.,  28  111.  9;  R.  R.  Co.  Co.  v.  Campbell,  86  111.  443. 

V.  Pindar,  53  111.  449;  Id.  v.  Gillham,  *Ry.  Co.  v.  Pindar,  53  HI,  447. 
39  111.  455;  Id.  v.  McCleUan,  42  111. 
41 


642  CASE. 

bustible  material,  and  for  neglect  they  are  liable  to  the  person 
injured.' 

It  is  not  negligence  per  se  for  a  railroad  company  to  suffer 
grass  and  weeds  to  accumulate  on  its  road;  the  fact,  however, 
is  proper  evidence  for  the  jury,  who  may  find  negligence  from 
it.  Owners  of  lands  contiguous  to  railroads  are  as  much  bound, 
in  law,  to  keep  their  lands  free  from  an  accumulation  of  dry 
grass  and  weeds  as  railroad  companies  are;  so  where  a  fire  is 
started  on  the  company's  land,  and  is  communicated  to  fields 
adjoining,  the  negligence  of  such  owner,  in  that  respect,  will 
be  held  to  have  contributed  to  the  loss.  And  unless  it  appears 
that  the  negligence  of  the  company  is  greater  than  that  of 
such  land  owner,  the  latter  can  not  recover  for  injuries  thus 
arising.^ 

No.  332.    Against  a   railroad  commny  on   the   statute^    for   damages 
resulting  from  not  fencing  its  road,  etc. 

{Commence  as  in  No.  327,  ante.)    For  that  whereas  the  defendant,  before 

and  on  the day  of ,  in  the  year  18 — ,  in  the  county  aforesaid,  was  a 

railroad  corporation,  and  was  possessed  of  and  using  and  operating  a  cer- 
tain railroad,  extending  through  a  part  of  the  county  aforesaid,  the  line  of 
which  said  railroad  then  and  there  was,  and  for  more  than  six  months  be- 
fore that  time  had  been,  open  for  use;  yet  the  defendant,  not  regarding  the 
statute  in  such  case  made  and  provided,  did  not  before  that  time  tliere  erect 
and  then  and  there  maintain  fences  on  the  sides  of  its  said  railroad  suitable 
and  sufficient  to  prevent  horses  from  getting  upon  the  said  railroad;  by 
means  whereof  and  for  want  of  such  fences  —  horses  of  the  plaint- 
iff then  and  there  strayed  and  went  upon  the  said  railroad,  at  a  certain 
place  where  such  fence  was  then  necessary  to  prevent  horses  from  getting 
upon  the  said  raih-oad  from  the  lands  adjoining  the  same,  and  not  where 
the  said  raih'oad  then  ran  through  uninclosed  lands  lying  at  a  greater  dis- 
tance than  five  miles  from  any  settlement,  nor  where  the  proprietors  of  the 
lands  through  which  the  said  railroad  then  ran  had  then  already  erected 
fences,  or  agreed  with  the  defendant  so  to  do,  nor  at  the  crossing  of  any 
public  road  or  highway,  nor  within  the  limits  of  any  town,  city  or  village; 
and  the  said  horses  so  being  on  the  said  railroad  there  (to  wit,  at  the  place 
in  that  behalf  aforesaid),  a  certain  engine  of  the  defendant,  then  driven 

'  Rev.  Stat.  (1895),  1199;  2  Starr  &  Pindar,  53  111.  447;  R.  R.  Co.  v.  Si- 

Curtis,  1933;  Rev.  Stat.  (1893),  1115,  monson,  54  111.  504. 

•"R.R.  Co.  v.  Shamfelt,  47  111.  497;  ^2  Starr  &  Curtis'  Stat.  1927;  Rev. 

R.  R.  Co.  V.  Frazier,  47  111.  505;  R.  Stat.   (1893)  1115;  Rev.   Stat.   (1895) 

R.   Co.  v.  MUls,  42  111.  407;  R.  R.  1199. 

Co.  V.  Munn,  51  111.  78;  Ry.  Co.  v.  ^ 


CASE.  64:3 

and  governed  by  divers,  then  agents  of  the  defendant,  on  the  said  railroad, 
then  and   there  ran   and  struck  upon  and  against  the  said  horses,  and 

thereby  of    the  said   horses,  each  of  the  value  of dollars,  were 

then  and  tliere  killed,  and  wholly  lost  to  the  plaintiff,  and  the  others  of  the 

said  horses,  each  of  the  value  of dollars,  were  then  and  there  greatly 

hurt,  wounded  and  lamed,  and  became  of  no  use  or  value  to  the  plaintiff. 

{Second  count,  for  not  maintaining  cattle-guards.)  And  whereas  also  the 
defendant,  before  and  on  the  day  aforesaid,  in  the  county  aforesaid,  was  a 
railroad  corporation,  and  was  possessed  of  and  using  and  operating  a  cer- 
tain other  railroad  extending  through  a  part  of  the  county  aforesaid,  the 
line  of  which  last-mentioned  railroad  then  and  there  was,  and  for  more 
than  six  months  before  that  time  there  had  been,  open  for  use;  yet  the  de- 
fendant, not  regarding  the  statute  in  such  case  made  and  provided,  did  not 
before  that  time  there  constrtict  and  then  and  there  maintain  cattle-guards, 
suitable  and  sufficient  to  prevent  horses  from  getting  upon  the  same  rail- 
road, at  a  certain  road  crossing  there  before  that  time  and  then  existing 
and  established,  to  wit,  at  the  crossing  of  the  same  railroad  and  a  certain 
road  {describe  the  road  by  name,  location,  or  termini  and  if  it  crosses  the 
railroad  more  than  once  state  the  particular  place ;)hy  Tnca,ns  whereof,  and 

for  want  of  such  cattle-guards, other  horses  of  the  plaintiff  then 

strayed  and  went  upon  the  same  railroad,  from  the  said  road  crossing,  and 
strayed  and  wandered  along  and  upon  the  same  railroad,  beyond  and  near 
the  said  road  crossing,  (to  wit,  in  the  county  aforesaid);  and  the  last  men- 
tioned horses  so  being  on  the  same  railroad  as  aforesaid,  a  certain  other  en- 
gine of  the  defendant,  then  driven  and  governed  by  divers  then  agents  of 
the  defendant,  on  the  same  railroad,  then  and  there  ran  and  struck   upon 

and  against  the  same  horses,  and  thereby of  the  same  horses,  each 

of  the  value  of dollars,  were  then  and  there  killed,  and  wholly  lost  to 

the  plaintiff,  and  the  others  of  the  same  horses,  each  of  the  value  of 

dollars,  were  then  and  there  greatly  hurt,  wounded  and  lamed,  and  became 
of  no  use  or  value  to  the  plaintiff. 

{A  count  at  common  law  may  be  inserted,  charging  the  injury  to  have 
been  negligently  and willf idly  done,  and  omitting  all  allegations  in  respect 
to  fences  and  cattle-guards.) 

Wherefore  the  plaintiff  says  that  he  is  injured,  and  has  sustained  damage 
to  the  amount  of dollai*s,  and  therefore  he  brings  his  suit,  etc' 

Since  the  passage  of  the  act  of  1855,  railroad  companies  in 
Illinois  are  liable  for  injuries  caused  to  cattle  that  stray  upon 
their  roads  through  want  of  the  required  fences  or  cattle- 
guards;"  and  the  failure  of  a  railway  to  comply  with  the  stat- 

'  See  R.  R.  Co.  v.  Crawford,  25  111.  Hall,  88  IlL  368;  Schertz  v.  Ry.  Co., 

529;   Id.   V.   Helm,  27  111.  198;   Id.  107  111.    577;  Ry.  Co.  v.  Schertz,   12 

v.    Mothland,    30    111.    452;     Id.  v.  Bradw.  304;  Id.  v.  Crauford,  25  111. 

Bookless,  55  111.  230.  529;  Id.  v.  Barton,  80  Hi.  72;  Id.  v. 

'  Rev.  Stat.  (1893)  1115;  R.  R.  Co.  Gerber,  82  111.  632;  Id.  v.   Woosley, 

V.   Neikirk,  13  Bradw.   387;  Id.  v.  85  111.  370. 


641  CASE. 

ute,  renders  it  liable,  prima  facie,  for  stock  killed  or  injured 
by  its  agents,  engines  or  cars.' 

In  an  action  against  a  railroad  company,  under  the  statute, 
the  plaintiff  must  show  that  the  railroad  has  been  open  for  use 
six  months  before  the  occurrence  of  the  injury;  ^  and  that  such 
injury  was  occasioned  by  the  omission  of  the  company  to  main- 
tain a  fence  or  cattle-guards  at  some  place  where  the  statute 
requires  the  same  to  maintained.'  The  declaration  need  not 
allege  that  the  place  where,  etc.,  was  not  a  farm  crossing,  as 
the  statute  does  not  exempt  the  company  from  fencing  its 
road  at  such  crossings;  and  if  the  required  bars  or  gate  at  a 
farm  crossing  were  left  down  or  open  by  some  one,  without 
the  fault  of  the  company,  and  thereby  the  animals  got  on  the 
track  and  were  injured,  that  is  a  matter  of  defense.* 

Although  the  declaration  must  negative  all  the  exceptions 
in  the  statute,  the  burden  is  not  on  the  plaintiff  to  prove  the 
averment  that  there  was  no  contract  between  the  company  and 
the  owner  of  the  ground  that  the  latter  should  build  the  fence 
at  the  place  w^here  the  animal  went  upon  the  railroad.*  A 
town  or  village,  within  the  meaning  of  the  statute,  is  any  as- 
semblage of  houses,  for  dwellings,  or  places  of  business,  or  both, 
whether  situated  on  regularly  laid  out  streets  and  alleys  or 
not." 

Railroad  companies,  by  force  of  the  statute,  are  required  to 
fence  their  roads  with  sufficient  fences  to  turn  cattle,  and  after 
erecting  to  keep  them  in  repair;  they  are  required  to  put  in 
gates  or  bars  at  farm  crossings,  which  are  a  part  of  the  fence, 
and  the  duty  to  keep  their  fences  in  repair  includes  the  duty  of 
keeping  the  gates  or  bars  securely  closed,  so  as  to  prevent  cat- 
tle from  getting  upon  their  roads  at  such  place  as  well  as  at 
other  points.     And  while  these  companies  are  not  required  to 

J  R.  R.  Co.  V.  Brake,  125  111.  393;  Id.  v.  WUliams,   27  111.  48;   Id.  v. 

Id.  V.  Lynch,  67  111.  149.  Saunders,  85  111.  288. 

2  R.  R.  Co.  V.  Meisenheimer,  27  III.  *  R.  R.  Co.  v.  Helm,  27  111.  198;  Id. 

Z^;  Id.  V.Jones,  211X1.^1;  Ry.  Co. \.  v.    Swearinger,  ZZ  l\\.    289;  7d.  v. 

Diehl,  52  111.  441;  Id.  v.  Bacon,  30  Buck,  14  Bradw.  394;  Id.  v.  Sierer, 

111.  347;  Id.  V.  Bookless,  55  111.  230;  13  Bradw.  261. 

Id.  V.  Brake,  125  111.  393.  »  R.  R.  Co.  v.  Bacon,  30  111.  347. 

^R.  R.  Co.  V.  Taijlor,  27  lU.  207;  «  R.  R.  v.  Williams,  27  III.  48. 


CASE.  64:5 

keep  such  a  force  of  men  on  their  roads  that  abreach  in  a  fence 
would  be  seen  and  repaired  as  soon  as  made,  still  the  law  re- 
quires them  to  keep  a  force  sufficient  to  discover  and  close 
such  a  breach  within  a  reasonable  time.' 

When  a  servant  of  the  company  went  over  the  road  at  four 
p.  M.  Saturday,  and  found  the  fences  in  repair,  and  the  next 
Monday  morning  he  again  passed  over  the  road,  and  found 
that  a  fence  had  been  recently  broken,  and  cattle  had  got  upon 
the  track  and  been  injured,  it  was  held  that  the  company 
showed  due  diligence,  and  was  not  liable  for  the  injurj--  to  the 
cattle."  If  a  horse  takes  fright  and  runs  away,  and  gets  upon 
a  railroad  at  a  point  where  the  company  is  bound  to  fence, 
and  is  killed  upon  the  track,  the  fact  that  the  fence  or  cattle- 
guard  was  insufficient  at  that  point,  will  alone  render  the 
company  liable.  But  if  the  horse,  in  its  fright,  gets  upon  the 
track  by  breaking  a  fence  or  leaping  a  guard  which  would  be 
sufficient  under  ordinary  circumstances,  then  the  company 
will  not  be  obliged  to  prove  an  absence  of  negligence  in  run- 
ning the  train,  and  will  not  be  liable  unless  shown  to  have 
been  guilty  of  carelessness  or  a  willful  commission  of  the 
injury.' 

A  good  and  sufficient  fence  is  not  merely  one  which  will 
turn  ordinary  animals,*  but  one  which  will  turn  animals  which 
are  to  some  extent  unrulj^^ 

It  is  gross  negligence  in  an  engine  driver  not  to  observe 
cattle  upon  or  near  the  track,  at  a  road  crossing  eighty  or  one 
hundred  yards  distant,  when  he  could  readily  do  so.®  It  is 
gross  negligence  to  drive  a  train  of  cars  before  the  engine,  at 
a  high  rate  of  speed,  through  a  deep  cut,  toward  a  crossing  at 
the  end  of  the  cut,  without  sounding  the  bell  or  whistle  con- 
tinuously for  the  distance  required  by  the  statute.^  If  an 
animal  is  suddenly  driven  on  the  track  by  a  dog,  and  there  is 

•  Ry.  Co.  V.  Harris,  54  lU.  528;  Id.  *  R.  R.  Co.  v.  Utley,  38  HI.  410. 

V.  Barrie,  55  111.  226;  Id.  v.  Saun-  ''Ibid, 

ders,  85  111.  288.  '  R.  R.  Co.  v.  Cauffman,  38  111.  424; 

»  R.  R.  Co.  V.  Swearinger.  47  111.  Id.  v.  Wren,  43  IlL  77;   Id.  v.  Bar- 

206;  see  Ry.  Co.  v.    Barrie,  55   111.  rie,  55  HI.  226. 
226;  R.  R.  Co.  v.  Hall,  88  111.  368.  '  R.  R.  Co.  v.  TnjpUtt,  38  111.  482. 

*R,  R.Co.  V.  Vtley,  38  lU.  410. 


646  CASE. 

no  fault  on  the  part  of  the  engine  driver,  the  company  will 
not  be  held  liable.'  While  the  failure  of  a  railroad  compan}'- 
to  fence  its  road  is  negligence,  it  is  also  negligence  on  the  part 
of  the  owner  of  horses  to  place  them,  with  blind  bridles  on 
them,  in  a  field  through  which  an  unfenced  railroad  passes. 
The  owner  has  a  right  to  place  them  in  the  field,  but  not  so 
blinded  as  to  render  them  incapable  of  avoiding  danger.  In 
such  a  case,  whether  the  one  party  or  the  other  has  been  guilty 
of  the  greater  negligence,  is  a  question  to  be  determined  by 
the  jury.^ 

If  a  railroad  company  has  erected  and  maintains  sufficient 
fences  and  cattle  guards,  then  it  is  not  liable  for  injuries 
caused  to  cattle  on  its  road,  unless  such  injuries  are  caused  by 
the  negligent  or  willful  act  of  the  company.^ 

An  omission  to  ring  a  bell  or  sound  a  Avhistle  at  a  road 
crossing  does  not  render  a  railroad  company  liable  for  an 
injury  to  animals,  unless  such  ringing  or  sounding  would  have 
prevented  the  injury.  Where  a  company  is  not  bound  to  fence 
its  road,  it  is  only  liable  for  injuries  done  to  animals  through 
wantonness  or  gross  negligence.* 

The  trustees  of  a  railroad  company,  if  they  do  business  in 
the  name  of  the  company,  are  liable  to  be  sued  in  that  name, 
and  their  property  is  liable  for  debts  incurred  while  transact- 
ing: business  under  that  name.^ 

A  railroad  company  can  not  free  itself  from  liabilit}'' by  leas- 
ing its  road  to  other  parties.  Contractors  for  the  construc- 
tion of  a  railroad  are  the  servants  of  the  company,  and  for 
their  tortious  acts,  while  about  the  company's  business,  the 
company  is  liable." 

The  company  owning  a  railroad  not  fenced  as  required  by 

'  R.  R.  Co.  V.  Wren,  43  HI.  77.  *  R.  R.  Co.  v.  Phelps,  29  lU.   447; 

2i2.  R.  Co.  V.  Todd,  36  lU.  409;  see  Id.  v.  Baker,  47  111.  295. 

Id.  V.  Baches,  55  111.  379.  *  Wilkinson  v,  Fleming,  30'I1I.  353. 

3  R.  R.  Co.   V.    Crawford,   25  III.  «  R.  R.  Co.  v.  Whipple,  22111.  106; 

529;  see  Id.  v.  Goodwin,  30  111.  117;  see  Hinde  v.   Nav.    Co.,  15  111.  72; 

Id.  V.  Morthland,  30  111.  451;  Id.  v.  Leslier  v.  Nav.  Co.,  14  111.  85. 
Geddis,  33  111.   304;  Id.  v.  Middles- 
worth,  ^QJH.  4ai. 


CASE.  647 

law,  and  also  the  company  using  it,  are  liable  for  injuries  done 
to  cattle  by  the  trains  of  the  latter  company.' 

No.  333.    Against  a  railroad  company,  for  causing  death  of  person — Suit 
by  administrator, 

{Title  of  court,  etc.,  as  in  No.  327,  ante.)    A.  B.  plaintiff,  administrator 

of  the  estate  of  G.  H.,  deceased,  who  died  intestate,  complains  of  the  

railroad  company,  defendant,  of  a  plea  of  trespass  on  the  case  :  For  that 
whereas  the  defendant,  in  the  lifetime  of  the  said  G.  H.,  to  wit,  on,  etc.,  in, 
etc. ,  was  possessed  of  and  using  and  operating  a  certain  railroad  extending 
through  a  part  of  the  county  aforesaid,  and  was  also  then  and  there  pos- 
sessed of  a  certain  locomotive  engine,  with  a  certain  train  of  cars  then  at- 
tached thereto,  which  said  locomotive  engine  and  train  were  then  and  there 
under  the  care  and  management  of  divers  then  servants  of  the  defendant, 
who  were  then  and  there  driving  the  same  upon  and  along  the  said  rail- 
road, near  and  towards  a  certain  crossing  of  the  said  railroad  and  a  certain 
public  highway  there,  (to  wit,  a  certain  public  highway  then  leading  from 

to ;)    And  while  the  said  G.  H.,  ivith  all  due  care  and  diligence, 

was  then  riding  across  the  said  railroad,  at  the  sa"d  crossing,  upon  the  said 
public  highway  there,  in  a  certain  wagon  drawn  by  two  horses,  the  defend- 
ant then  and  there,  by  its  said  servants,  so  carelessly  and  improperly  drove 
and  managed  the  said  locomotive  engine  and  train,  that  by  and  through 
the  negligence  and  improper  conduct  of  the  defendant,  by  its  said  servants, 
in  that  behalf,  the  said  locomotive  engine  and  train  then  and  there  ran  and 
struck  with  great  force  and  violence  upon  and  against  the  said  wagon,  and 
thereby  the  said  G.  H.  was  then  and  there  thrown  with  great  force  and 
violence  from  and  out  of  the  said  wagon  to  and  upon  the  ground  there,  and 
was  thereby  then  and  there  killed.  And  the  plaintiff  avers  that  the  said 
G.  H.  left  him  surviving  one  J.,  his  widow,  and  one  L.,  his  son  and  next  of 
kin,  who  are  still  living;  and  that  by  reason  of  the  death  of  the  said  G.  H. 
as  aforesaid,  the  said  J.  has  been  and  is  deprived  of  her  means  of  support, 
and  the  said  L.  has  been  and  is  deprived  of  his  means  of  support  and 
education.  2 

{A  count  may  he  inserted,  charging  neglect  to  ring  a  hell,  etc.,  like  No. 
S28,  ante.) 

To  the  damage  of  the  plaintiff,  as  administrator  as  aforesaid,  of dol- 
lars, and  therefore  he  brings  his  suit,  etc.  And  the  plaintiff  brings  into  the 
court  here  the  letters  of  administration  to  him  granted  by  the  county  coiui; 
of  the  county  aforesaid,  which  give  sufficient  evidence  to  the  court  here  of 
the  grant  of  administration  of  the  said  estate  to  the  plaintiff,  etc. 

This  action  is  given,  in  Illinois,  by  the  act  of  February  12, 
1 853.^     In  order  to  recover,  the  plaintiff  must  allege  in  his  dec- 

»  R.  R.  Co.  V,  Kanouse,  39111.  272;  'See  R.  R.  Co.  v.  Morris,  26  HI, 

Id.  V.  Rumhold,  40  111.  143;  but  see      400;  10  Law  &  Eq.  439;  3  Duer  635. 
Fletdierv.  R.  R.  Co. ,  1  Allen  (Mass.)  9.  » 1  Starr  &  Curtis  1290;  Rev.  Stat. 


648  CASE. 

laration,  and  prove,  that  the  deceased  left  a  widow  or  next  of 
kin,  to  whom  the  damages  can  be  distributed.  There  may  be 
persons  who  have  been  for  years  separated  from  their  families 
and  kindred,  and  who  in  all  probability  would  never  return  to 
them;  and  in  case  of  the  death  of  such  persons,  there  would  be 
no  next  of  kin  who  could  sustain  any  pecuniary  loss  thereby, 
because  a  continuance  of  their  lives  would  have  brought  no 
pecuniary  benefit  to  their  kindred.  The  sole  measure  of  dam- 
ages is  the  pecuniary  loss;  nothing  is  to  be  allowed,  by  way  of 
solace,  for  the  bereavement.' 

When  the  death  of  a  person  is  caused  by  the  wrongful  act, 
default,  or  negligence  of  another,  and  the  act  or  neglect  is 
such  as  would  have  entitled  the  former  to  maintain  an  action 
if  death  had  not  ensued,  the  wrongdoer  is  liable  for  damages, 
in  an  action  to  be  brought  in  the  name  of  the  personal  repre- 
sentatives of  the  deceased.  Suit  must  be  brought  within  two 
years.^ 

The  action,  under  the  statute,  is  to  be  brought  by  the  exec- 
utor or  administrator  of  the  deceased;  and  it  is  not  limited  to 
those  cases  where  the  deceased  leaves  a  widow.  Any  money 
recovered  by  such  action  is  not  to  be  treated  as  a  part  of  the 
estate  of  the  deceased;  creditors  do  not  derive  any  benefit  from 
it.  It  is  to  be  distributed  among  those  to  whom  the  personal 
estate  would  go  by  law,  in  the  absence  of  a  will.  Orphans 
may  have  redress,  under  this  statute,  where  both  parents  are 
killed,  and  a  husband  for  the  loss  of  a  wife."    (But  the  hus- 

(1893)  813;   Rev.  Stat  (1895)  861;  see  ^Itev.  Stat  (1893)  812;  Rev.  Stat 

Coal  Co.  V.  Strawn,  15  Bradw.  347;  (1895)  861;   1  Starr  &  Curtis  1290;  R. 

Bolton  V.  Daly,  106  111.  131;  R.  K  R.  Co.  v.  Morris,  26  111.  400;  Chicago 

Co.  v.  Clayherg,  107  111.  644.  v.  Major,  18  111.  349;  Id.  v.  Slattern, 

1  R.  R.  Co.  V.  Harwood,  80  111.  88;  54  III.  133;  R.  R.  Co.  v.  Harwood,  80 

Barley  V.  Chicago, ^B\sB.AZQ;  Brady  III.  88:  Hackett  -v.  Svielsley,   77  111. 

V.  Chicago,  4  Biss.  448;  R.  R,  Co.  v.  109;  R.  R.  Co.  v.   O'Connor,  77  111. 

Moranda,  93  111.  302;  Id.   v.   May,  391;  Id.  v.  Becker,  76  111.  25;  Id,  v. 

108  111.  288;  Furnan   Co.  v.  Abend,  Miller,  76  111.  278;  Id.  v.  Durkin,  76 

107  IlL  44;    R.  R.  Co.  v.  Morris,  26  111.  395;  Weick  v.  Landers,  75  111.  93; 

111.  400;  Id.  V.  BacJies,  55  111.  381;  Chicago  v.  Scholten,  15  III. 'iQ8. 

Coal  Co.   V.  Hood,  77  111.  68;  R.  R.  ^  City  v.  Major,  18  lU.  349;  Id.  v. 

Co.  Brooks,  81   111.    245;  Chicago  v.  Starr,  42  111.  174;  Id.   v.  Porter,  47 

Scliolten,   75   Bl.   468;    R.  R.  Co.  v.  111.  66;  Kerr  v.  Forgue,  54  111.  482; 

Austin,  69  111.  426.  R.  R.  Co.  v.  Wlialen,  19  Bradw.  116; 


CASE.  649 

hand  is  not  in  any  sense  next  of  kin  to  the  wife,  nor  the  wife 
to  the  husband.)' 

A  child,  four  years  old,  fell  into  a  water  tank  constructed 
by  the  city  of  Chicago,  and  was  drowned.  Held^  that  the 
father,  as  administrator,  could  maintain  an  action  under  the 
act  which  gives  a  remedy  when  the  death  of  a  person  is  caused 
by  the  wrongful  act,  default,  or  negligence  of  another.* 

I^o.  334.    Against  a  city,  for  permitting  a  sidewalk  to  remain  out  of  repair 
whereby  plaintiff  was  injured. 

{Title  of  court,  eta.,  as  in  No.  327,  ante.)    A.  B.,  plaintiff,  by  E.  F.,  his 

attorney,  complains  of  the  city  of ,  defendant,  of  a  plea  of  trespass  on 

the  case:  For  that  whereas  the  defendant,  before  and  on,  etc.,  was  pos- 
sessed and  had  control  of  a  certain  public   sidewalk  on  a  certain  public 

street,   called  street,  in  the  said  city,  in  the  county  aforesaid,  and 

ought  to  have  kept  the  same  in  good  and  safe  repair  and  condition.  Yet 
the  defendant,  not  regarding  its  duty  in  that  behalf,  while  it  was  so  pos- 
sessed and  had  the  control  of  the  said  sidewalk,  to  wit,  on  the  day  afore- 
said, there  wrongfully  and  negligently  suffered  the  same  to  be  and  remain 
in  bad  and  unsafe  repair  and  condition,  and  divers  of  the  planks  where- 
with the  said  sidewalk  was  laid  to  be  and  remain  broken  and  unfastened, 
by  means  whereof  the  plaintiff,  who  was  then  and  there  passing  along  and 
upon  the  said  sidewalk,  then  and  there  necessarily  and  unavoidably  tripped 
and  stumbled  upon  and  against  one  of  the  said  broken  and  unfastened 
planks  of  the  said  sidewalk,  and  was  thereby  thrown  and  fell  to  and  upon 
the  said  sidewalk  and  the  ground  there,  and  thereby  the  right  wrist  of  the 
plaintiff  was  then  and  there  dislocated  and  broken,  and  he  became  sick, 
lame  and  disordered,  and  so  remained  for  a  long  time,  to  wit,  from  thence 
hitherto,  during  all  which  time  he  thereby  suffered  great  pain,  and  was  hin- 
dered from  transacting  his  business  and  affairs,  and  also,  by  means  of  the 
pwemises,  was  there  obliged  to  and  did  layout  divers  sums  of  money, 

amounting  to dollars,  in  and  about  endeavoring  to  be  healed  of  the 

said  wounds,  sickness  and  disorder.  To  the  damage  of  the  plaintiff  of 
dollars,  and  therefore  he  brings  his  suit,  etc. 

"Where  the  law  imposes  the  duty  upon  a  municipal  corpo- 
ration of  keeping  its  streets  in  a  safe  condition  for  the  use  of 
the  public,  an  action  on  the  case  will  lie  to  recover  damages 

Id,  V.   O'Connor,   19    Bradw.    591;  ^Chicago  v.  Major,   18    III.   349; 

Id,   V.    Carey,    115   111.  115;    Id.  v.  Chicago  v.   Starr,   42   111.   174;  see 

Shacklett,    10    Bradw.    404;    Id.  v.  City  v.    Porter,   47   111.  66;  Herr  v. 

Shacklett,  105  111.  364.  Forgue,   54  III.  483;   R.   R.   Co.   v. 

'  Toumsend  v.  Radcliffe,  44111.  446;  Stumps,  55  111.  367. 
2  Kent.  Com.  136;  see  Whiton  v.  R. 
R.  Co.,  2  Diss.  282. 


650 


CASE. 


occasioned  by  a  neglect  of  such  duty.'  And  such  duty  can 
not  be  shifted  by  the  corporation  upon  a  person  who  may  be 
employed  to  perform  it." 

If  an  individual  constructs  a  hatchway  in  a  sidewalk,  he 
must  respond  for  any  damages  resulting  from  his  negligence 
to  render  it  safe  and  free  from  danger.  It  is  also  the  duty  of 
the  city  to  keep  the  streets  and  sidewalks  in  safe  condition, 
and  it  will  be  liable  for  injury  resulting  from  its  neglect  of 
duty  in  that  respect.  But  should  a  recovery  be  had  against 
the  city  in  such  case,  the  person  whose  neglect  of  duty  caused 
the  injury  will  be  liable  over  to  the  city  therefor.* 

The  measure  of  damages  in  an  action  against  a  municipal 
corporation,  for  negligence  in  not  keeping  its  streets  and  side- 
■walks  in  good  condition,  is  compensatory,  unless  the  proof 
shows  the  injury  complained  of  was  willful,  which  is  scarcely 
possible  in  the  case  of  a  corporation  of  that  description.* 


'  Springfield  v.  Le  Claire,  49  111. 
476;  Lesher  v.  Wabash  Co.,  14  111. 
85;  Hinde  v.  Wabash  N.  Co.,  15  111. 
73;  Browning  v.  Springfield,  17  111. 
143;  Scammon  v.  Chicago,  25  111. 
424;  Bloomington  v.  Bay,  42  111.  503; 
Severin  v.  Eddy,  52  111.  189;  Decatur 
V.  Fisher,  53  111.  407;  City  v.  Cock- 
rum,  59  111.  App.  540;  Clayburgh  v. 
Chicago,  25  111.  535;  Joliet  v.  Verley, 
35  111.  58:  Chicago  v.  Gallagher,  44 
111.  295;  Lacon  v.  Page,  48  III.  499; 
Chicago  v.  Johnson,  53  111.  91; 
Lovenguth  v.  Bloomington,  71  III. 
238;  Kepperlyv.  Ramsden,  83  III.  357; 
City  V.  Brown,  13  Bradw.  122;  Chi- 
cago V.  Keefe,  114  111.  225;  Mansfield 
V.  Moore,  124  111.  136;  Rock  Island  v. 
Cuineley,  126  111.  408;  Chicago  v. 
Dalee,  115  III.  386;  Joliet  v.  Graber, 
21  111.  App.  632;  Sterling  v.  Merrill, 
124  111.  523;  Bloomington  v.  Annett, 
16  111.  App.  303;  Heam  v.  Chicago, 
20  111.  App.  249;  McDaneld  v.  Logi, 


143  111.  487;  Chicago  x.  Bahcock,  143 
111.  358;  Bloomington  v.  Osterle,  139 
111.  130;  Village  v.  Johnson,  52  III. 
App.  659;  Springfi£ld  v.  Rosenmeyer, 
52  111.  302;  Senger  v.  Harvard,  147 
111.  304;  Streator  v.  Hamilton,  49 
111.  App.  449;  Normal  v.  Gresliam, 
49  111.  App.  196;  Mt.  Carmel  v. 
Guthridge,  52  111.  App.  633;  City  v. 
Scraggs,  52  111.  App.  551;  La  Salle 
V.  Porterfield,  138  111.  114;  Smith  v. 
3IcDowell.  148  lU.  51. 

'^Springfield  v.  Le  Claire,  49  111. 
476. 

2  Severin  v.  Eddy,  52  111.  189;  see 
Pfau  V.  Reynolds,  53  111.  212;  Chi- 
cago V.  Gallagher,  44  111.  295;  Chi- 
cagov.  Stearns,  105  111.  554;  Chicago 
V.  Schmidt,  107  111.  186;  Blooming- 
ton V.  Chamberlin,  104  111.  268;  R.  R. 
Co.  V.  Rung,  104  111.  641. 

'*  Chicago  v.  Martin,  49  111.  241; 
Decatur  v.  FisJwr,  53  111.  407. 


CASE.  651 

No.  335.     Against  defendant,  for  keeping  uncovered  a  vault-hole  in  street, 
adjoining  his  premises,  whereby  plaintiff  fell  doum,  and  was  injured. 

(Title  of  court,  etc.,  as  in  No.  327,  ante.)  A.  B.,  plaintiff,  by  E.  F.,  his 
attorney,  complains  of  C.  D.,  defendant,  of  a  plea  of  trespass  on  the  case  : 
For  that  whereas  the  defendant,  before  and  on,  etc.,  was  the  possessor  and 
occupier  of  a  certain  messuage  and  premises,  with  the  appurtenances,  sit- 
uate in  the  county  aforesaid,  and  near  to  a  certain  common  and  public 
highway  there,  in  which  said  highway  there  now  is,  and  before  and  on  the 
day  aforesaid  there  was,  a  certain  hole,  opening  into  a  certain  cellar  and 
vault  of  and  belonging  to  the  said  messuage  and  premises  of  the  defendant,  to 
wit,  in  the  county  aforesaid  :  Yet  the  defendant,  well  knowing  the  mat- 
ters aforesaid,  while  he  was  so  the  possessor  and  occupier  of  the  said  mes- 
suage and  premises,  with  the  appurtenances,  and  while  there  was  such  hole 
as  aforesaid,  to  wit,  on  the  day  aforesaid,  there  wrongfully  and  unjustly 
permitted  the  said  hole  to  be  and  continue,  and  the  same  then  and  there 
was  so  badly,  insufficiently  and  defectively  covered,  that  by  means  of  the 
premises,  and  for  want  of  a  proper  and  sufficient  covering  to  the  said  hole, 
the  plaintiff,  who  was  then  and  there  passing  in  and  along  the  said  high- 
way, then  and  there  necessarily  and  unavoidably  slipped  and  fell  into  the 
said  hole,  and  thefeby  the  left  leg  of  the  plaintiff  was  then  and  there 
broken,  and  he  became  and  was  sick,  sore,  lame  and  disordered,  and  so 
remained  for  a  long  space  of  time,  to  wit,  from  thence  hitherto,  during  all 
which  time  the  plaintiff  thereby  suffered  great  pain,  and  was  prevented 
from  attending  to  and  transacting  his  affairs  and  business;  and  also,  by 
means  of  the  premises,  was  obliged  to  and  did  pay  out  a  large  sum,  to  wit, 

the  sum  of dollars,  in  and  about  endeavoring  to  be  healed  of  the  said 

wounds,  sickness  and  disorder  :  To  the  damage  of  the  plaintiff  of dol- 
lars, and  therefore  he  brings  his  suit,  etc. 

Where  the  tenant  of  a  house  was  bound  to  repair  it,  but  the 
landlord  superintended  the  repairs,  and  the  cellar  was  left  in 
a  dangerous  state,  and  an  accident  happened,  the  landlord  was 
held  liable.*  So  where  the  defendant  had  employed  a  brick- 
layer to  make  a  sewer,  who  left  it  open,  in  consequence  of 
which  the  plaintiff  fell  in  and  broke  his  leg,  the  defendant  was 
held  liable.' 

Where  a  clerk  of  a  retail  merchant  went  down  into  a  cellar 
that  was  being  excavated  by  the  landlord  of  the  merchant,  to 
Fijcover  a  lady  customer's  hat,  and  while  there  was  injured  by 
the  falling  of  a  wall,  it  was  held  that  he  could  maintain  an 

'^Leslie  v.  Pounds,  4  Taunt.  649;  v.    Major,  18  111.  349;  Hunt  v.  Horjt, 

Payne  v.  Rogers,  2  H.  Black  349.  20  III.   544;  Pekin  v.   Newell,  26  111. 

^Slyv.  Edgley,  6  Esp.  6;  Langher  320;  Severin  v.  Eddy,  52  111.  190. 
V.  Pointer,  5  B.  &  C.  559;  see  Oity 


652  CASE. 

action  against  the  person  doing  the  work,  for  the  injury  re- 
ceived.' 

Every  person  must  so  use  his  own  property  as  not  to  injure 
his  neighbor;  and  if  he  fails  so  to  do,  through  the  want  of 
reasonable  care  or  skill  on  the  part  of  himself  or  his  servants, 
he  is  liable  for  injuries  thereby  sustained." 

An  owner  of  land,  who  contracts  with  a  skillful  person  to 
erect  a  building  thereon,  and  who  for  that  purpose  surrenders 
the  premises  for  the  use  of  the  contractor,  is  not,  during  the 
erection  of  the  building,  answerable  in  damages  for  an  accident 
occurring  to  a  stranger  passing  by.  If  the  sufferer  has  any 
recourse,  it  is  against  the  contractor,  or  the  corporation  within 
which  the  property  is  situated.  The  persons  who  may  be  ac- 
cused of  negligence,  under  such  circumstances,  are  not  the 
servants  of  the  owner  of  the  premises,  but  of  the  contractor.^ 

No.  335a.    AgaiTist  defendant  for  obstructing  the  natural  flow  of 

water,  etc. 

{Commence  as  in  No.  335,  ante.)  For  that  whereas,  on,  to  wit,  etc.,  the 
plaintiff  was  and  from  thence  hitherto  has  been,  and  still  is  lawfully  pos- 
sessed of  the  following  described  real  estate,  to  wit  {here describe);  and  the 
defendant  was  possessed  of  the  following  described  real  estate,  to  wit  {here 
describe),  which  said  last  mentioned  real  estate  of  the  defendant  adjoined 
the  real  estate  of  the  plaintiff  above  described  on  the  east  side  thereof;  that 
on,  to  wit,  etc.,  the  defendant  wrongfully  and  unlawfully  erected  and  built, 
and  from  that  time  until  the  commencement  of  this  suit,  maintained  and 
continued  a  certain  levee  or  embankment  along  the  west  side  or  line  of  his 
said  real  estate,  which  said  levee  or  embankment  was  of  great  dimensions, 
to  wit,  of  the  width  of  sia;  feet,  and  of  the  height  of  ttvo  feet,  and  was  with- 
out sufficient  openings  therein  to  permit  the  free  passage  of  water.  That 
by  reason  whereof  the  flow  of  large  quantities  of  rain  water  which  natu- 
rally flowed  upon,  over  and  across  the  said  premises  of  the  defendant,  was 
obstructed,  and  said  water  was  diverted  from  its  natural  course,  and  ran 
and  flowed  in  a  different  direction  over  and  upon  the  said  land  and  prem- 
ises of  plaintiff,  and  there  remained,  whereby  the  said  land  and  prem- 
ises of  the  plaintiff  were  greatly  damaged  and  injured,  and  became  and 
were  and  are  wet,  swampy,  and  to  a  great  extent,  unfit  for  cultivation,  to 

the  damage  of  the  plaintiff  of dollars,  and  therefore  he  brings  his  suit, 

etc 

»  Lamparter  v.  WaUbaum.,  45  IlL  111.  494;  R.  R.  Co.  v.  Phillips,  49  lU. 

444,  234;  City  v.  LeClaire,  49  III.  476. 

2  Lamparter  v.  WaUbaum,  45  111.  ^  Scammon  v.  City,  25  III.  424;  see 

444;  R.  R.  Co.  v.  Middlestvorth,  46  Mercer  v.  Jackson,  54  111.  397. 


CASE.  653 

If  one  connects  a  part  of  his  own  premises  with  a  public 
sidewalk,  he  thereby  invites  the  public  to  treat  the  part  so 
connected  as  belonging  to  the  sidewalk,  and  can  not  be  heard 
to  say  that  the  whole  is  not  a  public  way.  In  such  case  he 
must  exercise  due  care  to  keep  the  premises  in  a  reasonably 
safe  condition.  So,  if  a  hole  in  a  stone  platform  between  a 
building  and  a  street,  open  to  the  public  use  as  a  part  of  the 
street,  is  necessary  to  light  the  basement,  and  it  can  be  made 
safe  by  a  railing,  or  otherwise,  it  is  the  duty  of  the  owner 
making  the  platform,  to  use  ordinary  care  and  diligence  to 
make  and  keep  such  opening  reasonably  safe.' 

As  a  general  rule,  the  occupant,  and  not  the  owner,  is 
responsible  for  injuries  arising  from  a  failure  to  keep  the 
premises  in  a  proper  state  of  repair.'  But  when  premises  are 
let  with  a  nuisance  upon  them,  by  means  of  which  the  injury 
complained  of  is  received,  the  owner  or  landlord  will  be  liable.^ 

"When  a  party  comes  into  possession  of  land  as  grantee  or 
lessee,  with  an  existing  nuisance  upon  it,  he  can  not  be  held 
liable  to  an  action  for  damages  until  he  has  been  first  notified 
to  remove  it.* 

No.  336.    Against  proprietors  of  stage  coach  for  negligence. 

{Commence as  in  last  precedent.)  For  that  whereas  the  defendant,  before 
and  at  the  time  of  committing  the  grievances  hereinafter  mentioned,  was 
the  owner  of  a  certain  common  stage  coach,  by  him  used  and  employed  in 
carrying  passengers  from,  etc.,  to  etc.,  and  divers  other  places,  for  hire  and 
reward;  and  being  such  owner  of  the  said  stage  coach,  he,  the  defendant, 
on,  etc.,  at,  etc.,  aforesaid,  received  the  plaintiff  into  the  said  coach  as  a 
passenger,  to  be  safely  conveyed  thereby  on  a  journey  from,  etc.,  aforesaid, 
to,  etc.,  aforesaid,  for  a  certain  fare  and  reward  to  the  defendant  in  that 
behalf;  and  by  reason  thereof  the  defendant  ought  carefullj'  to  have  con- 
veyed the  plaintiff,  by  the  said  coach,  on  the  said  journey.  Yet  the  de- 
fendant, not  regarding  his  duty  in  that  behalf,  so  carelessly  and  unskill- 
fuUy  conducted  himself  that  by  and  through  the  negligence  and  default  of 
the  defendant  and  his  servants,  and  for  want  of  due  care  and  attention  to 
their  duty  in  that  behalf,  the  said  coach  afterwards,  and  while  the  same  was 

^  Tomle  v.  Hampton,  129  111.  379.  ♦Angell  on  "Water  Courses,   Sec. 

^Tomle  v.  Hampton,  129  111.  379;  403;  Cooley  on  Torts,  611;   Johnson 

Stephaniv.  Brovm,  40  111.  428;  Grid-  v.  Lewis,  13  Conn.  303;  Graff  v.  An- 

ley  V.  Bloomington,  68  III.  47;  City  kenbrandt,   124    111.  51,   and    cases 

V.  Simpson,  110  111.  294.  there  cited. 

3  Tomle  V,  Hampton,  129  111.  379, 
and  cases  there  cited. 


654  CASE. 

conveying  the  plaintiff  on  the  said  journey,  and  before  the  arrival  thereof 
at,  etc.,  aforesaid,  to  wit,  on  the  day  aforesaid,  in  the  county  aforesaid, 
was  overset  and  thrown  down;  by  means  whereof  the  plaintiff,  then  being 
therein,  was  greatly  cut,  bruised  and  wounded,  and  the  left  leg  of  the 
plaintiff  vv^as  then  and  there  broken  and  he  became  sick,  sore,  lame  and 
disordered,  and  so  remained  for  a  long  space  of  time,  to  wit,  from  thence 
hitherto,  during  all  which  time  he,  the  plaintiff,  thereby  suffered  great 
pain,  and  was  prevented  from  attending  to  and  transacting  his  affairs  and 
business,  and  was  also  by  means  of  the  premises  obliged  to  lay  out,  and  did 
lay  out,  a  large  sum  of  money,  to  wit, dollars,  in  and  about  endeavor- 
ing to  be  healed  of  the  said  wounds,  sickness  and  disorder;  and  also  thereby 
the  plaintiff  was  hindered  and  prevented  from  continuing  his  said  journey, 

and  was  detained  at  a  certain  inn  at ,  for  the  space  of weeks,  and 

during  that  time  there  incurred  great  expenses,  amounting  to dollars, 

in  and  about  his  necessary  support  and  maintenance.     To  the  damage,  etc. 

"Where  a  traveler  in  a  public  coach  is  injured  by  the  careless- 
ness of  the  driver,  such  carelessness  is  to  be  deemed  negligence 
on  the  part  of  the  owner,  in  a  suit  brought  against  him  for 
damages.'  As  regards  passengers,  a  stage  coacli  proprietor  is 
not  liable  for  any  personal  injury  they  may  sustain  from  the 
upsetting  of  the  coach,  etc.,  unless  he,  or  his  servants,  be  guilty 
of  gross  negligence,  or  unskillfulness  in  driving  or  providing 
horses,  coach  or  harness,  etc.; "  but  the  breaking  down  or  up- 
setting of  the  coach  is  said  to  be  jprima  facie  evidence  of  neg- 
lect.' 

No.  337.    Against  defendant,  for  keeping  a  dog  which  bit  plaintiff. 

{Covimenee  as  in  No.  335,  ante.)  For  that  whereas  the  defendant,  on,  etc., 
and  from  thence  until  and  at  the  time  of  the  damage  and  injury  to  the 
plaintiff  as  hereinafter  mentioned,  to  wit,  in  the  county  aforesaid,  wrong- 
fully and  injuriously  did  keep  a  certain  dog,  he,  the  defendant,  during  all 
that  time  well  knowing  that  the  said  dog  then  was  used  and  accustomed  to 
attack  and  bite  mankind;  which  said  dog  afterwards,  and  while  the  defend- 
ant so  kept  the  same  as  aforesaid,  to  wit,  on,  etc.,  aforesaid,  did  there 
attack  and  bite  the  plaintiff,  and  did  then  and  there  greatly  lacerate,  hurt 
and  wound  one  of  the  legs  of  the  plaintiff,  and  thereby  he,  the  plaintiff, 
then  and  there  became  and  was  sick,  sore,  lame  and  disordered,  and  so 
remained  for  the  space  of  six  months  then  next  following,  during  all  wliich 

^ Brown  v.  R.  R.   Co.,  31    Barb.  Joiies   v.     Voorhees,    10  Ohio,  145 

385.  Stokes   v.  Saltonstall,  13   Pet.   181 

2  Company  v.    Raivlings,  3   Bing.  McKinney  v.    Neil,  1   McLean,  540 

71;  Sharp  v.  Grey,  9  Bing.  457.  Maury  v.  Talmadge,  2  McLean,  157. 

^  Christie  v.  Grigg,  2  Carapb.  79; 


CASE.  655 

time  he  thereby  suffered  great  pain,  and  was  thereby  then  and  there 
hindered  and  prevented  from  transacting  his  affairs  and  business;  and  also, 
by  means  of  the  premises,  the  plaintiff  was  thereby  then  and  there  put  to 

great  expense  and  charges,  in  the  whole  amounting  to  the  sum  of 

dollars,  in  and  about  endeavoring  to  be  cured  of  the  said  wounds,  sickness, 
lameness  and  disorder  so  occasioned  as  aforesaid,  and  has  been  and  is,  by 
means  of  the  premises,  otherwise  greatly  injured  and  damnified.  {A  count 
may  be  inserted,  alleging  that  the  dog  "was  of  a  ferocious  and  malicious 
disposition," — and  another  count  for  not  keeping  the  dog  properly  secured 

or  fed.)    To  the  damage  of  the  plaintiff  of dollars,  and  therefore  he 

brings  his  suit,  etc. 

If  a  person  negligently  keeps  clogs,  or  other  animals,  which 
are  known  to  him  to  be  of  a  savage  and  ferocious  disposition, 
he  is  accountable  for  all  injury  which  the\^  may  do;  and  it  is 
the  duty  of  the  owner  of  such  animals  to  secure  them  from 
doing  mischief.' 

It  is  in  general  necessary,  in  an  action  for  an  injury  com- 
mitted by  a  domestic  or  other  animal  not  naturally  inclined 
to  commit  mischief,  to  allege  and  prove  that  the  owner  pre- 
viously had  notice  of  the  animal's  mischievous  propensity,  or 
that  the  injury  was  attributable  to  some  other  neglect  on  his 
part.* 

No.  33S.    For  malicious  prosecution. 

{Commence  as  in  No.  335,  ante.)  For  that  whereas  the  plaintiff  now  is 
a  good  and  honest  citizen  of  this  state,  and  as  such  has  always  behaved 
himself,  and  has  not  ever  been  guilty,  or  until  the  time  of  the  committing 
of  the  several  grievances  by  the  defendant,  as  hereinafter  mentioned,  been 
suspected  to  have  been  guilty  of  larceny,  or  of  any  other  such  crime,  by 
means  whereof  the  plaintiff,  before  the  committing  of  the  said  grievances, 
had  deservedly  obtained  the  good  opinion  and  credit  of  all  his  neighbors, 
and  other  worthy  citizens  of  this  State;  yet  the  defendant,  well  knowing  the 
premises,  but  contriving  and  maliciously  intending  to  injure  the  plaintiff 
in  his  aforesaid  good  name,  fame  and  credit,  and  to  bring  him  into  public 
scandal,  infamy  and  disgrace,  and  to  cause  the  plaintiff  to  be  imprisoned 
for  a  long  space  of  time,  and  thereby  to  impoverish,  oppress  and  ruin  him, 
on,  etc.,  in,  etc.,  went  and  appeared  before  one  E.  F.,  Esq.,  then  and  there 

^  Pickering  V.  Orange,!  Scam.  3SS;  Egan,    65    111.    235;     Flansherg    v. 

Pickering  v.  Orange,  1  Scam.  492;  Basin,  3   Bradw.   531:    Wonnley  v. 

Stumps  V.  Kelly,  22  111.  140;  Norris  Gregg,  65  111.  251;   Spray  v.  Amer- 

v.  Warner,  59  111.  App.  300;  Linck  man,  66  111.  309;  Marean  wVanatta, 

V.  Scheffel.  32  111.  App.  19.  88  111.  132;  Norris  v.  Warner,  59  111. 

^  1  Chit.   PI.  70;   Keightlinger  v.  App.  300. 


656  CASE. 

being  one  of  the  justices  of  the  peace  in  and  for  the  county  aforesaid,  and 
then  and  there,  before  the  said  E.  F.,  so  being  such  justice  as  aforesaid, 
falsely  and  maliciously ,  and  without  any  reasonable  or  probable  cause 
whatsoever,  charged  the  plaintiff  with  having  feloniously  stolen  a  certain 
gold  watch  of  tlie  defendant;  and  upon  such  charge  the  defendant  falsely 
and  maliciously,  and  without  any  reasonable  or  probable  cause  whatsoever, 
caused  and  procured  the  said  E.  F,,  so  being  such  justice  as  aforesaid,  to 
make  and  grant  his  certain  warrant,  under  his  hand,  for  the  apprehending 
and  taking  of  the  plaintiff,  and  for  bringing  the  plaintiff  before  him,  tlie 
said  E.  F.,  or  some  other  justice  of  the  peace  in  and  for  the  said  county,  to 
be  dealt  with  according  to  law  for  the  supposed  offense;  and  the  defendant, 
under  and  by  virtue  of  the  said  warrant,  afterwards,  to  wit,  on  the  day 
aforesaid,  there  wrongfully  and  unjustly,  and  without  any  reasonable  or 
probable  cause  whatsoever,  caused  and  procured  the  plaintiff  to  be  arrested 

by  his  body,  and  to  be  imprisoned,  and  kept  in  prison  for  the  space  of 

hours  then  next  following,  and  until  he,  the  defendant,  afterwards,  to  wit, 
on,  etc.,  there  falsely  and  maliciously,  and  without  any  reasonable  or  prob- 
able cause  whatsoever,  caused  and  procured  the  plaintiff  to  be  carried  in  cus- 
tody before  the  said  E.  F.,  so  being  such  justice  as  aforesaid,  to  be  examined 
before  the  said  justice,  touching  the  said  supposed  offense;  which  said  jus- 
tice having  heard  and  considered  all  that  the  defendant  could  say  or  allege 
against  the  plaintiff  touching  and  concerning  the  said  supposed  offense, 
thereupon  then  and  there  adjudged  and  determined  that  the  plaintiff  was 
not  guilty  of  the  said  supposed  offense,  and  then  and  there  caused  the  plaint- 
iff to  be  discharged  out  of  custody,  fully  acquitted  and  discharged  of  the 
said  supposed  offense;  and  the  defendant  has  not  further  prosecuted  his  said 
complaint,  but  has  abandoned  the  same,  and  the  said  complaint  and  pros- 
ecution are  wholly  ended  and  determined. 

{Second  count.)  And  whereas  also  the  defendant,  further  contriving  and 
maliciously  and  wickedly  intending  as  aforesaid,  on,  etc.,  aforesaid,  in,  etc., 
aforesaid,  falsely  and  maliciously,  and  without  any  reasonable  or  probable 
cause  whatsoever,  charged  the  plaintiff  with  having  committed  a  certain 
offense  punishable  by  law,  to  wit,  larceny;  and  upon  such  last-mentioned 
charge  the  defendant  then  and  there  falsely  and  -maliciously  caused  and  pro- 
cured the  plaintiff  to  be  arrested  by  his  body,  and  to  be  imprisoned,  and  to 
be  kept  in  prison  for  the  space  of  then  next  following;  at  the  expira- 
tion of  which  time  he,  the  plaintiff,  was  there  duly  discharged  and  fully 
acquitted  of  the  last-mentioned  supposed  offense. 

(Averment  of  damage,  applicable  to  both  counts.)  By  means  of  which 
several  premises,  the  plaintiff  has  been  and  is  greatly  injured  in  his  credit 
and  reputation,  and  brought  into  public  scandal,  infamy  and  disgrace,  with 
and  among  all  his  neighbors,  and  other  worthy  citizens  of  this  State,  and 
divers  of  those  neighbors  and  citizens,  to  whom  his  innocence  in  the  prem- 
ises was  unknown,  have,  on  occasion  of  the  premises,  suspected  and  believed, 
and  still  do  suspect  and  believe,  that  the  plaintiff  has  been  and  is  guilty  of 
larceny;  and  also  the  plaintiff  has,  by  means  of  the  premises,  suffered  great 
anxiety  and  pain  of  body  and  mind,  and  has  been  obliged  to  lay  out,  and 
has  laid  out,  divers  large  sums  of  money,  amounting  to dollars,  in  and 


CASE.  657 

about  tlie  procuring;  of  his  discharge  from  the  said  imprisonment,  and  the 
defending  of  himself  in  the  premises,  and  the  manifestation  of  liis  innocence 
in  that  behalf,  and  has  been  greatly  hindered  and  prevented,  by  reason  of 
the  premises,  from  following  and  transacting  his  affairs  and  business,  for 

the  space  of ;  and  also,  by  reason  of  the  premises,  the  plaintiff  has  been 

and  is  otherwise  greatly  injured  in  his  credit  and  circumstances:  To  the 
damage  of  the  plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc. 

The  gist  of  this  action  is,  that  the  prosecutor  acted  mali- 
ciously, and  without  probable  cause.  If  there  is  no  malice,  or 
if  there  is  probable  cause,  the  action  will  not  lie.' 

Probable  cause  is  defined  to  be  a  reasonable  ground  of  sus- 
picion, supported  by  circumstances  sufficiently  strong  in  them- 
selves to  warrant  a  cautious  man  in  the  belief  that  the  person 
accused  is  guilty  of  the  offense  charged." 

A  defendant  may  give  in  evidence  any  facts  which  show 
that  he  had  probable  cause  for  prosecuting,  and  that  he  acted 
in  good  faith  upon  the  ground  of  suspicion.^  Good  faith  is  al- 
ways an  important  subject  of  inquiry  in  an  action  of  this  kind.* 

To  enable  a  party  to  maintain  this  action,  it  is  not  essential 
that  there  should  have  been  a  trial  by  jury,  and  a  verdict  of 
acquittal  rendered,  upon  the  charge  preferred  against  him,* 
but  it  is  essential  to  aver  and  prove  that  the  charge  upon  which 
the  plaintiff  was  arrested  has  been  legally  determined,  in  his 
favor,  either  by  a  trial  or  otherwise.' 

^  Jacks  V.  Simpson,  13  111.  702;  Ross  v.  Innis,  So  III.  487;  Chapman 
Leidig  v.  Rawson,  1  Scam.  272;  Mc-  v.  Caicrey,  50  111.  512;  Angela  v. 
Bean  v.  Ritchie,  18  111.  114;  Ross  v.  Faul,  85  111.  106;  Palmer  v.  Richer- 
Innes,  35  111.  487;  Anderson  v.  son,  70  111.  544;  Harpham  v.  Whit- 
Friend,  85  111.  135;  Harpham  v.  ney,  77  111.  32;  Broton  v.  Smith,  83 
Whitney,  77  111.  32;  Barrett  v.  111.  291;  Hess  v,  Webb,  53  111.  App. 
Spaids,   70  111.  408;    Mitchinson  v.  53. 

Cross,  58  111.  366;  Bourne  v.  Stout,  '  Leidig  v.  Rawson,  1  Scam.  272; 

62  111.  261;  Montross  v.  Bradsby,  68  Richie  v.  McBean,  17  111.  63;  Collins 

111.  185;  McFarland  v.    Washburn,  v.  Hayte,   50  111.  337;  Comstock  v. 

14  111.  App.  369;  Low  v.  Greemcood,  Wood,  50  111.  352. 

30  111.  App.  184;  Wilmerton  v.  Sam-  *  Comstock  v.   Wood,  50  111.  352; 

pie,  S9  111.  App.  &2;  Loiery  V.  Hately,  Bee  Wagner  v.  Atdtman,  2  Bradw. 

30    111.    App.    299;   Sundmacher   v.  Ul;  Bishop  v.  Bell,  2  Bradw.   551; 

Block,  39  111.    App.  553:  Neufeld  v.  Splane  v.  Byrne,  9  Bradw.  392. 

Rodemenski,  144  111.  83;  Schattgen  *  Gilbert  v.  Emmons,  42  111.  143. 

V.  Holnback,  149  111.  646.  ^  Feazle  v.  Simpson,  1  Scam.  30; 

« Richie  v.   McBean,   17    111.    63;  Hurd  v.  Shaw,  20  lU.  354;    Walker 
42 


65S  CASE, 

And  where  a  plaintiff  sboAved  a  discharge  under  a  hctbeas 
corpus,  it  was  held  that  it  should  also  have  been  made  to  ap- 
pear on  the  trial  that  the  state's  attorney  did  not  send  the  case, 
with  the  witnesses,  before  the  grand  jury,  or,  if  he  did  so,  that 
no  further  steps  had  been  taken  by  the  people.' 

If  an  attorney  commences  an  action  against  a  party  when 
he  knows  that  his  client  has  no  cause  of  action,  but  with  some 
sinister  view,  for  some  purpose  of  his  own,  he  will  be  liable 
therefor.^ 

Although  a  want  of  probable  cause  may  raise  the  presump- 
tion of  malice,  the  existence  of  malice  is  not  sufficient  to  raise 
a  presumption  of  want  of  probable  cause.  The  want  of  proba- 
ble cause  must  be  shown.^  It  is  for  the  plaintiff  to  show  that 
the  defendant  had  not  probable  cause  or  reasonable  ground  for 
prosecuting.  Probable  cause  is  a  mixed  question  of  law  and 
fact.' 

Malice  may  be  inferred  from  want  of  probable  cause,  but  it 
does  not  follow,  as  a  legal  inference.* 

Previous  good  character  may  be  shown  as  one  evidence  of 
want  of  probable  cause,  and  bad  character  may  be  shown  as 
reason  for  probable  cause.  The  discharge  of  the  accused  by 
the  examining  magistrate,  is  not  sufficient  evidence  of  the 
existence  of  want  of  probable  cause;  and  any  fact,  such  as  the 
admission  of  the  accused,  which  goes  to  disprove  either  want 
of  probable  cause  or  malice,  is  proper  for  the  consideration  of 
the  jury,  in  an  action  for  malicious  prosecution/ 

V.  Martin,  43  111.   508;  Blalock  v.  ney,  77  III.  32;  Thompson  v.  Force, 

Randall,  76  111.   224;  Rothschild  v.  65  111.  370;  Montross  v.  Bradsby,  68 

Meyer,  18  Bradw.  284;iioy  v.  Goings,  111.  185;  Mitchinson  v.  Cross,  58  III. 

112  111.  656;  Leyenberger  v.  Paid,  40  866;  Roy  v.  Goings,  112  111.  656. 

111.  App.  516;  Rosenberg  v.  Hart,  33  * ZsraeZ  v .  BrooA-s,  23  111.  575;  Jacks 

111.  App.  265;  Hibbard  v.  Ryan,  46  v.  Simpson,  13  111.  701;   Broivn  v. 

III.  App,  313.  Smith,  83  111.  292;  Hirschv.  Feeney, 

1  Walker  v.  Martin,  43  111.  508;  83  111.  548;  see  Wade  v.  Walden,  23 
Poppers  V.  3Iiller,  14  Bradw.  87;  111.  425;  Palmer  v.  Richardson,  70 
Harpham  v.  Whitney,  77  111.  32;  111.  544;  Calef  v.  Thomas,  81  III.  478; 
Kriig  V,  Ward,  77  111.  603.  Angelo  v.  Faid,  85  111.  106;  Schattgen 

2  Burnap  v.  Marsh,  13  111.  535.  v.  Holnback,  149  111.  646. 

^Wade  V.    Walden,    23    111.    425;  ^  Cartright  \.  Elliott,  ^5  111.  App. 

Angelo  v.  Paul,   85  111.  106;  King  v.       458. 
Ward,  niH-QOS;  Harpham  V.Whit-  ^Israel  v.    Brooks,    28    111.   575; 


CASE.  659 

It  is  not  requisite  that  a  crime  shall  have  been  committed 
before  probable  cause  for  an  arrest  can  exist.  An  act  may 
have  been  done  which  will  create  a  belief  of  crime,  but  when 
the  animiis  is  shown  with  which  the  act  was  done,  its  char- 
acter may  be  entirely  chanf^ed.* 

The  waiving  of  an  examination  before  a  magistrate,  and 
giving  bail  for  appearance  at  the  circuit  court,  is  not  such  an 
admission  of  guilt  as  will  preclude  the  plaintiff  from  sustain- 
ing an  action  for  a  malicious  prosecution.  A  discharge,  by 
the  prosecuting  attorney,  of  the  recognizance  of  the  person 
accused,  is  the  usual  mode  of  terminating  a  prosecution  in  Illi- 
nois. A  bill  need  not  be  ignored  before  such  person  may  main- 
tain an  action  for  a  malicious  prosecution.' 

If  a  private  person  takes  part  in  an  unlaw^ful  imprisonment 
of  another  by  an  officer,  he  becomes  a  principal  in  the  act  and 
is  liable;  but  if  he  merely  communicates  facts  or  circumstances 
of  suspicion  to  the  officer,  leaving  him  to  act  on  his  own  judg- 
ment, he  is  not  liable  at  all,  in  an  action  either  for  malicious 
prosecution,  or  false  imprisonment.* 

The  mere  "  knowledge  and  consent "  of  one  partner,  as  to 
an  arrest,  unaccompanied  with  his  advice  and  co-operation, 
will  not  render  him  liable  with  his  copartner  in  an  action  by 
the  person  arrested.* 

The  law  upholds  and  favors  prosecutions  under  the  public 
laws  of  the  land,  and  shields  and  protects  parties  instituting 
them  in  good  faith  and  from  proper  motives.  So,  when  a 
party  consults  with  counsel  of  good  standing,  and  lays  before 
him  fully  the  facts  within  the  party's  knowledge,  and  then  acts 
in  good  faith  and  in  the  honest  belief  that  the  party  charged 
is  probably  guilty  of  the  criminal  offense,  he  will  not  be  held 
responsible,  if  it  shall  turn  out  that  the  party  is  not  guilty. 

If  a  criminal  prosecution  is  instituted  by  a  party  maliciously 

Thorpe  v.    Balliet,   25  111.   339;  see  ^SchoonJwver  v.  Meyers,  28111  SOS. 

Ross  V.  Innis,  35  111.  487;  Anderson  ^  Brmvn  v.  Chadsey,  39  Barb.  253; 

V.  Friend,  85  111.  135.  GiTbert  v.  Emmons,  42  111.  143. 

'  Ross  V.    Innis,  26   111.    259;  Mc-  *  Gilbert  v.    Emmons,  42  111.  143; 

David  V.    Blevins,    85  111.    238;  see  Rosenkrans  v.  Barker,  115  111.  331; 

Krug  V.  Ward,  77  111.  603;  Davie  v.  Grund  v.  Van  Vlcck,  69  111.  478. 
Wisher,  73  lU.  262. 


6C0  CASE. 

and  not  in  good  faith  upon  the  advice  of  legal  counsel  that  a 
crime  has  been  committed,  he  will  be  liable  for  a  malicious 
prosecution,  and  the  advice  of  counsel  Avill  not  avail  as  a 
defense.' 

No.  340.    For  criminal  conversation. 

(Commence  as  in  No.  335,  ante.)  For  that  whereas  the  defendant,  con- 
triving and  wickedly  intending  to  injure  the  plaintiff,  and  to  deprive  him 
of  the  society  and  assistance  of  E.  B.,  the  wife  of  the  plaintiff,  and  to  alien- 
ate and  destroy  her  affection  for  the  plaintiff,  on,  etc. ,  and  on  divers  other 
days  between  that  day  and  the  commencement  of  this  suit,  in,  etc.,  wrong- 
fully and  wickedly  debauched  and  carnally  knew  the  said  E.  B.,  then  and 
there  and  still  being  the  wife  of  the  plaintiff;  and  thereby  the  affection  of 
the  said  E.  B.  for  the  plaintiff  was  then  and  there  alienated  and  destroyed, 
and  also,  by  means  of  the  premises,  the  plaintiff  has  from  thence  hitherto 
wholly  lost  and  been  deprived  of  the  society  and  assistance  of  the  said  E. 
B.,  his  said  wife,  in  his  domestic  affairs,  which  the  plaintiff  during  all  that 
time  ought  to  have  had.  and  otherwise  might  and  would  have  had:    To 

the  damage  of  the  plaintiff  of  dollars,  and  therefore  he  brings  his 

suit,  etc. 

An  action  for  er'hninal  conversation  may  be  maintained 
either  in  case,  or  trespass,^  but  it  is  in  effect  in  case.^  A  re- 
covery against  one  party  in  an  action  for  crim.  con.  is  no  bar 
to  an  action  against  another  party  for  a  similar  injury.* 

In  such  action  the  plaintiff  must  prove  an  actual  marriage.^ 
A  marriage  license,  issued  in  the  State  of  Tennessee,  with  a 
certificate  indorsed  thereon  by  a  justice  of  the  peace,  that  he 
had  solemnized  the  marriage,  was  held  to  have  been  properly 
admitted  in  evidence,  the  official  character  of  the  officer  grant- 
ing the  license,  and  also  that  of  the  justice  of  the  peace,  being 

1  Neufeld  v.    BodeminsJci,  144  111.  70  III.  544;  Loioenthal  v.  Streng,  90 

83;    Roy  v.    Goings,   112    111.    662;  111.  74;  Nelson  v.  Daniehon,  83  111. 

Schaltgen  v.  Holnback,  149  III.  646;  545;  Home  v.  Sullivan,   83  111.  30; 

Bliss  v.  Wyman,  7  Cal.  257;  Ross  v.  Leyenberger  v.  Paul,   40  III.    App. 

Innis,  35  111.  487;  Collins  v.  Hayte,  516. 

50  111.  337;  Anderson  v.  Friend,  85  ^  And.  Steph.  PI.  83,  n.;  Yundt  v. 

111.  135;  Daviev.  Wisher,  73  111.  262;  Hartninft,  41  111.  9. 

STcidmore  v.   Bricker,   77  111.    164;  ^McFadzen  v.Olivant,  6  East  S87; 

Murpheyv.  Larson,!! III.  112;  Calef  Van  Vacter  v.  MeKillip,  7  Blackf. 

V.    Thomas,    81    111.    478;  Ames  v.  578. 

Snider,    69  111.  376;    Anderson    v.  ''I  Camp.  415;  1  Chit.  PI.  77. 

Friend,  71  111.  475;  Brown  v.  Smith,  °  4  Burr.  2057;   Phil,    on  Ev.  206; 

83  111.  291;  Palmer  v.   Richardson,  Selw.  N.  P.  14,  16. 


CASE.  661 

certified  by  the  clerk,  the  keeper  of  the  records,  under  his  offi- 
cial seal,  and  the  presiding  justice  having  certified  to  the 
authority  and  oflicial  character  of  the  clerk.' 

While  the  loss  of  service  of  the  wife  or  daughter  is  the 
alleged  ground  of  recovery,  the  injury  to  the  family  in  its 
reputation,  the  mental  anguish  and  distress  which  necessarily 
attend  the  transaction,  are  the  real  causes  for  the  recovery. 
And  though  the  husband  be  absent  from  home,  he  is  still  entitled 
to  his  wife's  services  in  the  nurture  of  his  children,  as  well  as 
to  the  setting  of  a  virtuous  example  to  them  by  her.* 

In  an  action  for  criminal  conversation,  evidence  that  the 
plaintiff  is  ill  tempered,  and  that  before  the  illicit  intercourse 
charged  he  and  his  wife  lived  unhappily  together,  and  occa- 
sionally came  to  blows,  is  inadmissible  in  mitigation  of  dam- 
ages; ^  nor  are  the  confessions  of  the  wife,  or  the  opinions  of 
witnesses,  as  to  her  fondness  for  the  defendant,  admissible  in 
evidence  against  him.* 

No.  341.     For  debauching  plaintiff's  daughter,  etc. 

(Commence  as  in  No.  335,  ante.)  For  that  whereas  the  defendant,  con- 
triving and  wrongfully  intending  to  injure  the  plaintiff,  and  to  deprive  him 
of  the  service  and  assistance  of  E.  B.,  the  daughter  and  servant  of  the 
plaintiff,  on,  etc.,  and  on  divers  other  days  between  that  day  and  the  com- 
mencement of  this  suit,  in,  etc.,  debauched  and  carnally  knew  the  said  E. 
B.,  then  and  there,  and  from  thence  hitherto,  being  the  daughter  and  serv- 
ant of  the  plaintiff;  whereby  the  said  E.  B.  there  became  pregnant  and  sick 
with  child,  and  so  remained  for  the  space  of  nine  months  then  next  follow- 
ing, at  the  expiration  whereof,  to  wit,  on,  etc.,  she,  the  said  E.  B.,  was 
there  delivered  of  the  child  with  which  she  was  so  pregnant  as  aforesaid: 
By  means  of  which  said  several  premises,  she,  the  said  E.  B.,  from  the  day 
first  above  me  itioned  hitherto,  there  became  and  was  unable  to  do  or  per- 
form the  necessary  affairs  and  business  of  the  plaintiff,  so  being  her  father 
and  master  as  aforesaid,  and  thereby  the  plaintiff,  during  all  that  time,  lost 
and  was  deprived  of  the  service  of  his  said  daughter  and  servant;  and  also, 
by  means  of  the  several  premises,  the  plaintiff  was  obliged  to,  and  did  nec- 
essarily, pay  out  divers  sums  of  money,  in  the  whole  amounting  to 

dollars,  in  and  about  the  nursing  and  taking  care  of  the  said  E.  B.,  his 
said  daughter  and  servant,  and  in  and  about  the  delivery  of  the  said  child  : 

To  the  damage  of  the  plaintiff  of dollars,  and  therefore  he  brings  liis 

suit,  etc. 

'  King  v.  Dale,  1  Scam.  513.  ^  Van  Vacterv.  3IeKillip,lBlackt. 

8  Yundt  V.  Hartrunft,  41  111.  9.  578. 

*McVey  v.  Blair,  7  Ind.  590. 


662  CASE. 

An  action  on  the  case  may  be  sustained  by  ?i  father,  for  the 
seduction  of  his  daughter,  without  proving  any  actual  loss  of 
services;  it  is  enough  that  the  daughter  be  a  minor,  residing 
with  her  fatlier,  and  that  he  has  a  right  to  claim  her  services.' 
Although  the  loss  of  service  is  the  alleged  ground  of  complaint, 
the  injury  to  the  family  in  its  reputation,  and  the  mental  an- 
guish and  distress  which  necessarily  attend  the  seduction,  are 
the  real  grounds  of  recovery,* 

It  is  said,  however,  that  a  parent,  in  that  character  merely, 
can  not  support  an  action  for  debauching  or  beating  his 
daughter,  and  that  such  an  action  is  only  sustainable  in  respect 
to  the  supposed  loss  of  service,  some  slight  evidence  of  which 
must  in  general  be  adduced.*  And  the  action  may  be  sus- 
tained, not  only  by  a  parent,  but  by  a  guardian,  brother-in- 
law,  master,  or  other  person  standing  in  loco  2)cii^6ntis  to  tlie 
person  seduced;*  and  for  the  seduction  of  an  adopted 
daughter." 

If  the  person  seduced  is  a  minor,  the  action  will  be  sus- 
tained, whether  she  resided  with  the  plaintiff  or  elsewhere  at 
the  time  of  the  seduction,  if  she  was  legally  under  the  control 
of,  or  might  be  required  to  perform  service  for  the  plain  tiff.'' 

Criminal  connection  may  take  place  between  the  sexes  with- 
out seduction;  and  in  a  suit  by  the  father  for  the  debauching 
of  his  daughter,  if  seduction  be  not  proved^  damages  should 
not  be  given  for  it.' 


'  Hewitt  V.  Prime,  21  Wend.  79 
Horkethv.  Barr,  8Serg.  &  Rawle36 
Mercer  v.  Walmsley,  5  Harr.  &  J.  27 


Alcott,  2  Term  168;  Doyle  v.  Jessup, 
29  111.  460;  Bayles  v.  Burgard,  48 
111.  App.  371;  Garretson  v.  Becker, 


Moran  v.  Daws,  4  Cow.  412;  Clark  52  111.  App.  255. 

V.  Fitch,   2  Wend.    459;  Grable  v.  *  Ball  v.  Bruce,  21  111.  161;  Bracy 

Margrave,  3  Scam.    373;  Anderson  v.  Kibhe,  31  Barb.  (N.  Y.)  273. 

V.  Ryan,  3  Gilm.  583;  Robinson  v.  'Irwin  v.  Dearman,  11   East  23; 

Burton,  5  B.aTrmg.  (Bel.)  dd5;  Verry  Maguinay     v.    Saudek,    5      Sneed 

V.  Watkins,  32  Eng.  C.  L.  308;  Hoi-  (Tenn.)146. 

laxoay  v.  Abell.  32  Eng.  C.  L.  528.  ^  Ball  v.  Bruce,  21  111.  161;  Boijd 

8  Yundt  V.  Hartrunft,  41  111.  9;  1  v.  Byrd,  8  Blackf .  118;  Boltun  v. 

Chit.  PI.  167;  Garretson  v.  Becker,  Miller,  6  Ind.  362. 
52  111.  App.  255.  ''Boyd  v.    Byrd,   8    Blackf.    113; 

^  Dean  v.  Peel,  5  East  45;  Weedon  Richardson  v.  Fonts,  11  Ind.  466. 
V.  Timbrell,  5  Term  360;  Bennett  v. 


CASE.  663 

The  daughter  is  a  good  witness; '  and  she  can  not  be  cross- 
examined  as  to  illicit  intercourse  with  other  men;  and  evidence 
of  a  promise  of  marriage  is  not  admissible;  and  the  plaintiff 
can  not  call  witnesses  to  the  girl's  good  character,  unless  the 
defendant  has  by  evidence  attacked  it.* 

The  damages  are  not  to  be  measured  by  the  loss  of  service, 
but  may  be  exemplar}^;  ^  and  expenses  actually  paid  may  be 
recovered.*  A  verdict  for  eight  hundred  dollars,  in  an  action 
for  seduction,  is  not  excessive.*  If  in  an  action  by  a  father  for 
his  daughter's  seduction,  her  character  for  previous  chastity  is 
successfully  impeached,  the  right  of  action  is  not  defeated, 
but  this  proof  goes  only  in  mitigation  of  damages.* 

No.  SJt2.     For  deceit  in  obtaining  goods  on  credit. 

{Commence  as  in  No.  335,  ante.)    For  that  whereas,  on,  to  wit,  etc.,  the 

plaintiff  was  possessed  of  certain  goods  of  the  value  of dollars,  and  the 

defendant  then  and  there  applied  to  the  plaintiff  to  sell  to  him  said  goods 
upon  a  credit  of days  from  said  date. 

That  for  the  purpose  of  inducing  plaintiff  to  sell  to  him  said  goods  upon 
said  credit,  the  defendant  falsely  and  fraudulently  represented  and  stated 
to  the  plaintiff  tliat  he,  the  defendant  was  solvent:  that  he  was  worth  in 

the  neighborhood  of  the  sum  of dollars;  that  his  business  was  in  good 

condition;  that  he  had  the  sum  of dollars  invested  therein;    that  his 

stock  was  well  worth  the  suiu  of dollars;  that  he  had  goods,  notes  and 

book  accounts  due  and  owing  to  him  to  the  amount  of  about dollars; 

that  his  outstanding  indebtedness  did  not  exceed  the  sum  of ■  dollars. 

And  plaintiff  avers  that  on  the  faith  of  said  representations  and  state- 
ments made  by  the  defendant  as  aforesaid  and  relying  implicitly  upon  the 
same  and  believing  the  same  to  be  true,  he,  the  plaintiff,  sold  to  the  de- 
fendant the  said  goods  upon  said  credit  of days. 

And  plaintiff  fm-ther  avers  that  said  statements  and  representations  so 
made  by  the  defendant  as  aforesaid  were  each  and  all  of  them  utterly  false 
and  untrue  at  the  time  they  were  made  and  were  at  that  time  known  by 
defendant  to  be  false  and  untrue  and  that  the  same  were  made  by  said  de- 
fendant with  the  fraudulent  purpose  of  obtaining  said  credit  as  aforesaid 

»  2Stra.  1064;  2  Chit.  PL  11  Am.  ^Ball  v.  Bi'uce,21  lU.  161;  Grable 

Ed.  644,  n.  v.  Margrave,  3  Scam.  373. 

'■  Dodd  V.  Morris,  3  Campb.  519;  *  1   Stark.  C.  N.  P.  287;  Doyle  v. 

Bonifield  v.  Massey,  1  Campb.  460;  Jessup,  29  111.  460. 

Doyle  V.  Jessup,  29  111.  460;  State  v.  "Doyle  v.  Jessup,  29  111.  460. 

Bierce,    27    Conn.    319;    Barcy   v.  ^  Reed     v.     Williams,    5     Sneed 

Kibbe,   31    Barb.   273;    Shattuck  v.  (Tenn.)  580. 
Myers,  13  Ind,  46;  Reed  v.  Williams, 
5  Sneed  580. 


664  CASE. 

and  for  the  purpose  of  obtaining  the  possession  of  said  goods  upon  credit 
and  without  paying  for  the  same;  that  at  the  time  of  the  making  of  said 
statements  and  representations  the  said  defendant  was  wholly  insolvent 
and  has  so  remained  ever  since,  and  that  defendant  was  fully  aware  of 
that  fact  and  knew  when  he  bought  said  goods  that  he  could  not  pay  for  the 
same  as  he  agreed. 

And  plaintiff  further  avers  that  although  the  time  at  which  said  payment 
was  to  be  made  for  said  goods  has  elapsed  the  defendant  has  never  paid  the 
sum  so  agreed  to  be  paid  for  said  goods  or  any  part  thereof. 

And  so  the  defendant  deceived  and  defrauded  the  plaiutiff  in  the  sum  of 
dollars  and  therefore  he  brings  this  suit,  etc. 

No:  343.    For  deceit  in  the  warranty  of  a  horse. 

{Commence  as  in  No.  335.  ante.)  For  that  whereas  the  plaintiff,  on,  etc., 
bargained  with  the  defendant,  at  his  request,  to  buy  of  him  a  certain  horse 

at  a  certain  price,  to  wit,  the  sum  of  dollars;  and  that  tlie  defendant 

for  the  purpose  of  inducing  the  plaintiff  to  purchase  said  horse  at  said 
price  then  and  there  fraudulently  and  falsely  warranted  tlie  said  horse  to 
be  sound,  and  quiet  in  harness,  whereas  in  truth  and  in  fact  the  said 
horse  was  at  the  time  of  said  warranty  and  sale  thereof,  unsound,  unsteady, 
restive  and  ungovernable  in  harness,  and  has  from  thence  hitherto  so  re- 
mained, which  said  facts  were  well  known  to  the  defendant  at  the  time  of 
the  warranty  by  him  of  said  horse  as  aforesaid.  And  plaintiff  further 
avers  that  relying  upon  the  warranty  of  the  defendant  as  aforesaid  he  then 
and  there  purchased  of  the  defendant  the  said  horse  and  then  and  there 

paid  to  the  said  defendant  the  said  sum  of  dollars;  and  the  plaintiff 

avers  that  the  defendant  by  means  of  the  premises,  on  the  day  aforesaid, 
there  falsely  and  fraudulently  deceived  the  plaintiff  on  the  sale  of  the  said 
horse  as  aforesaid  and  thereby  the  said  horse  afterward,  to  wit,  on  the  day 
aforesaid,  not  only  became  of  no  use  or  value  to  the  plaintiff  but  also  then 
and  there  greatly  kicked,  injured  and  spoiled  a  certain  other  horse  of  the 

plaintiff  of  the  value  of dollars;    and  thereby  also  the  plaintiff  was 

then  and  there  put  to  great  expense  of  his  moneys,  in  the  whole  amount- 
ing to  the  sum  of  dollars,  in  and  about  the  feeding  and  taking  care 

of  and  selling  and  disposing  of  the  first  mentioned  horse;  to  the  damage 
of  the  plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc. 

An  action  will  lie  for  deceit  and  warranty  in  the  sale  of  a 
horse,  no  matter  what  the  consideration  to  be  paid  was,  or 
whether  it  was  paid  down  or  not.'  In  an  action  on  the  case 
upon  an  express  warrant,  a  scienter  need  not  be  alleged,  nor,  if 
alleged,  need  it  be  proved." 

^  Applebee  v.  JRumery,  28  111.  280;  Schoenell,  55  Ind.  101;    Cameron  v. 

see  Eamesv.  Morgan,  37.111.  260.  Mount  (Wis.),  56  N.    E.    Rep.  109  i; 

■^  Williamson  v.  Allison,  2  East  8  Am.  &  Eng.  Enc.  Law,  793,  note. 
446;  2  Chit.  PI.   681,  n.;  Gregory  v. 


CASE.  665 

See  the  observations  and  authorities  under  form  No.  61, 
ante,  in  Assumpsit. 

No.  SU-     For  deceit  in  tlie  sale  of  wool  deceitfully  packed  and  not  merchant- 
able, etc. 

(Commence  as  in  No.  335,  ante.)  For  that  whereas  the  plaintiff,  on,  etc.,  in, 

etc.,  bargained  with  the  defendant  to  buy  of  him pounds  of  wool,  which 

was  then  and  there  packed  and  bound  up  into parcels  in  the  form  and 

having  the  appearance  of  fleece  wool;  that  the  defendant  then  and  there 
falsely,  deceitfully  and  fraudulently  and  with  the  intention  and  for  the  pur- 
pose of  inducing  the  plaintiff  to  purchase  the  same,  warranted  said  wool 
and  each  and  every  parcel  thereof  to  be  fleece  wool  and  to  be  packed  and 
bound  up  fairly  and  without  deceit,  and  to  be  good  and  merchantable, 
which  said  representations  and  warranty  were,  when  made  by  the  defend- 
ant as  aforesaid,  well  known  by  him  to  be  false  and  untrue;  that  the  plaint- 
iff relying  upon  the  said  representations  and  warranty  of  the  defendant  then 
and  there  purchased  and  the  defendant  then  and  there  deceitfully  sold  the 

same  to  the  plaintiff  for  the  sum  of dollars,  which  said  sum  plaintiff 

then  and  there  paid  to  the  defendant.  And  the  plaintiff  avers  that  at  the 
time  and  place  of  the  said  sale  the  said  wool  was  deceitfully  packed  and 

bound  up  and  that parcels  thereof  were  not  fleece  wool,  but  that  the 

wool  contained  in  those  parcels  was  wool  of  much  less  value  and  not  good 
and  merchantable  wool;  of  all  which  the  defendant  was  then  and  there  well 
knowing  and  so  the  defendant  falsely  deceived  and  defrauded  the  plaintiff 
to  his  damage  of dollars  and  therefore  he  brings  his  suit,  etc.^ 

To  entitle  a  party  to  recover  in  an  action  for  deceit,  it  must 
appear  that  the  representations  complained  of  were  untrue; 
that  they  were  material;  that  the  party  making  them  knew 
them  to  be  false,  and  that  the  person  seeking  to  recover  reUed 
on  the  statements  as  true  and  was  induced  to  act  upon  them.* 

A  declaration  wliich  sets  out  the  false  representations,  the 
knowledge  of  the  defendant  that  they  were  false,  their  falsity 
in  fact,  the  materiality  of  the  representations,  the  reliance 

»  See  8  Went.  369;  01.  Prec.  414.  v.  ArhucUe,  81  111.  501;  Bartlett  v. 

^Wheeler  v.  Randall,  48  111.  182;  Blaine,  83  111.   25;  Schivabacker  v. 

Hinerv.  Richter,  51  111.  299;  Fames  Riddle,  99  111.  343;  McBean  v.  Fox, 

V.  Morgan,  37  111.  260;  Farwell  v.  1  Bradw.  177;  Budlong  v.  Cunnitig- 

Metcalf,     61    111.    372;    Powers    v.  ham,   11   Bradw.  28;  Sherburne  v. 

Wheeler,  63  111.  29;  Gage  v,  Lewis,  Tobey,  19  Bradw.  618;  Wightman  v. 

68  III.  604;  Noetling  v.   Wright,  72  Tucker,  50  111.   App.  75;  Brown  v. 

111.  390;  Ins.  Co.  v.  Hogan,  80  111.  35;  Lobdell,  50  111.  App.  559;  Fmerson  v. 

Tone  V.  Wilson,  81  111.  529;  Merwin  Brigham,  10  Mass.  197. 


666  CASE. 

upon  them  hy  the  plaintiff  and  the  consequent  damage  is  suffi- 
cient.' 

When  the  vendor  of  goods  has  sued  the  purchaser  in  as- 
sumpsit for  the  value  thereof,  he  may  afterwards  by  leave  of 
court  change  the  form  of  action  to  one  of  case  charging  the 
defendant  with  fraud  and  deceit  in  the  purchase  of  the  goods 
and  recover  their  value.  A  plaintiff  is  not  confined  to  the 
form  of  action  he  may  first  adopt." 

No.  344  «•     Against  commissioners  of  highways  for  flooding  land  by  a 

ditch,  etc.^ 

(Commence  as  in  No.  335.)  For  that  whereas  the  said  plaintiff,  heretofore 
and  at  the  time  of  the  committing  of  the  grievances  hereinafter  mentioned, 
was,  and  from  thence  hitherto  has  been,  and  still  is,  lawfully  possessed  of 
certain  lands  and  premises,  with  the  appurtenances,  situate  in  the  county 
aforesaid,  which  said  land  and  premises  the  said  plaintiff,  before  and  at  the 
time  as  aforesaid,  used  and  enjoyed,  and  of  right  ought  to  have  used  and 
enjoyed,  and  still  of  right  ought  to  use  and  enjoy,  to  wit,  in,  etc. ;  never- 
theless the  said  defendants,  acting  at  the  time  aforesaid,  and  long  before 
and  hitherto  have  acted  and  still  act,  as  commissioners  of  highways  of  the 
township  of  Wilmington  in  the  county  aforesaid,  having  the  care  and  su- 
perintendence of  the  highways  and  bridges  therein,  contriving  and  unjustly 
intending  to  injure,  prejudice  and  aggrieve  the  said  plaintiff  in  the  posses- 
sion, use,  occupation,  and  enjoyment  of  his  said  lands  and  premises,  and  to 
render  the  same  incommodious  and  unfit  for  tillage,  and  of  little  or  no  use 
or  value  to  the  said  plaintiff,  whilst  the  said  plaintiff  was  so  possessed 
thereof  and  so  used  and  enjoyed  tlie  same  as  aforesaid,  to  wit,  on  the  day 
and  year  aforesaid,  and  in,  etc. ,  wrongfully  and  unjustly  cut,  dug  and 
made,  and  caused  and  procured  to  be  cut,  dug,  and  made,  a  certain  ditch, 
drain,  trench,  and  channel,  and  wrongfully  and  unjustly  built  thereupon, 
made,  and  erected,  and  caused  and  procured  to  be  built  thereupon,  made, 
and  erected,  a  certain  grade,  embankment  and  repair  near  to  the  said  lands 
and  premises  of  the  said  plaintiff  in  so  careless,  negligent,  and  improper  a 
manner,  and  kept  and  continued  the  said  ditch,  drain,  trench  and  channel, 
and  the  said  grade,  embankment  and  repair,  for  a  long  space  of  time,  to 
wit,  from  thence  hitherto,  that  by  reason  thereof  afterwards,  to  wit,  on  the 
day  and  year  aforesaid  and  on  divers  other  times  afterwards,  and  before 
the  commencement  of  this  suit,  divers  large  quantities  of  rain  water,  and 
surface  water,  and  standing  water,  ran  and  flowed  from  the  said  ditch, 
drain,  trench  and  channel,  and  from   and  along  the  said  grade,  embank- 

1  Brown  v.  Lobdell,  50  111.  App.  559;  « Floicer  v.  Bnimhack,  131  111.  646. 

Pasley  v.  Frieman,  notes;  Smith's  '  Tearney  v,  Smith,  86  111.  392. 

Lead.  Cases;  People  v.  Healy,  128 
111.  9. 


CASE.  667 

ment  and  repair,  down  to,  upon,  and  against,  and  into  the  said  lands  and 
premises  of  the  said  plaintiff,  and  walls,  banks,  ditches,  fences,  soil  and 
other  parts  thei-eof  and  therein  being,  and  thereby  greatly  injured  and 
damaged  the  said  lands  and  premises  of  the  said  plaintiff,  and  the  said 
fences,  walls,  banks,  ditches,  soil,  and  other  parts  thereof,  and  by  reason 
of  the  premises  the  said  lands  and  premises  of  the  said  plaintiff  became  and 
were  and  are  wet,  swampy,  and  less  fit  for  use,  occupation,  and  cultivation, 
and  also,  by  reason  of  the  premises,  the  rain  water,  surface  water,  and 
standing  water  aforesaid  ran  and  flowed  in  a  different  direction  or  chan- 
nel, and  with  much  greater  force  and  increased  violence  and  impetuosity 
than  it  of  right  ought  to  have  and  otherwise  would  have  done,  unto  and 
against  the  lands  and  premises  of  the  said  plaintiff,  and  the  fences,  banks, 
walls,  soil,  and  other  parts  thereof  as  aforesaid,  and  undermined,  washed 
away,  damaged,  and  destroyed  the  said  lands  and  premises  of  the  said 
plaintiff,  and  the  fences,  banks,  walls,  soil,  and  other  parts  thereof, 
whereby  the  plaintiff  has  suffered  great  damage,  to  wit,  etc. 

E.  F.,  Att'y  forPl'ff. 

JVo.  344  b.     For  negligence  in  setting  fire  to  a  prairie.^ 

{Commence  as  in  No. ,  ante.)    For  that  whereas  the  plaintiff  on,  etc., 

at,  etc.,  was  and  still  is  possessed  of  a  certain  tract  of  land,  to  wit :    {Here 

describe)  on  which  said  land  there  was  then stacks  of  wheat  in  the  sheaf; 

stacks  of  barley  in  the  sheaf;  stacks  of  oats  in  the  sheaf,  and 

stacks  of  hay,  the  property  of  the  plaintiff;  and  around  which  land  there 
was  a  rail  fence,  of  all  which  the  defendant  then  and  there  well  knew; 
yet  the  defendant,  at  the  said  time  and  place,  wittingly,  knowingly  and 
intentionally  kindled  a  fire  on  the  prairie  near  to  and  adjoining  the  said 
premises  of  the  plaintiff,  and  so  negligently  and  carelessly  watched  and 
tended  the  said  fire,  that  the  same  communicated  with  and  extended  into 
and  upon  the  said  premises  of  the  plaintiff,  and  consumed  the  said  described 
stacks  of  gi-ain  and  hay,  and  the  said  fence,  of  great  value,  to  wit,  of  the 

value  of dollars,  to  the  damage  of  the  plaintiff  of dollars,  and 

therefore  he  brings  suit,  etc. 

E.  F.,  Att'y  forPl'ff. 

No.  345.    Against  sheriff  for  taking  insufficient  sureties  in  replevin. 

{Commence  as  in  No.  335,  ante.)    For  that  w^hereasthe  plaintiff,  on,  etc., 
in,  etc.,  was  possessed,  as  of  his  own  property,  of  certain  chattels,  to  wit, 

(here  describe  the  property)  of  the  value  of dollars,  and  the  defendant, 

on  the  day  aforesaid,  was  sheriff  of  the  said  county;  and  the  plaintiff,  so  of 
the  said  goods  and  chattels  being  possessed,  and  the  defendant,  so  as  afore- 
said being  sheriff  of  the  said  county,  the  duty  of  his  said  office  not  consider- 
ing, but  contriving  and  fraudulently  intending  the  plaintiff  of  his  goods 
and  chattels  aforesaid  to  deprive  and  defraud,  on  the  day  aforesaid,  there 
by  color  of  his  office  aforesaid,  and  under  the  i^retense  of  a  certain  writ  of 

»  Burton  v.  McClellan,  2  Scam.  434. 


668  CASE. 

replevin,  to  him  directed  and  delivered,  the  goods  and  chattels  aforesaid, 
there  being  found,  at  the  plaint  of  one  J.  R.,  pretending  that  the  same  goods 
and  chattels  were  tlie  property  of  him,  the  said  J.  R.,  and  that  the  plaintiff 
had  taken  the  said  goods  and  chattels,  and  the  same  unjustly  detained, 
against  sureties  and  pledges,  the  goods  and  chattels  aforesaid  to  be  replevied 
from  the  possession  of  the  plaintiff,  and  to  be  delivered  to  the  said  J.  R.,  did 
cause  and  procure,  without  sufficient  surety  and  pledges,  or  any  sufficient 
surety  had  or  taken,  to  prosecute  the  said  suit  and  plaint  of  him,  the  said 
J.  R.,  against  the  plaintiff,  with  effect  and  without  delay,  and  to  make  a 
return  of  the  said  goods  and  chattels  to  the  plaintiff,  if  a  return  thereof 
should  be  adjudged  to  him,  and  to  save  and  keep  harmless  the  said  sherrff 
in  making  the  said  replevy,  as  according  to  the  statute  in  such  case  made 
and  provided,  and  the  duty  of  his  said  office,  and  the  tenor  of  the  writ  afore- 
said, he  ought  to  have  done.  And  thereupon,  on  the  same  day  aforesaid, 
the  plaintiff  was  there  summoned  into  the  circuit  court  of  the  said  county,  to 
appear  on,  etc.,  to  answer  the  said  J.  R.  of  a  plea  wherefore  he,  the  plaintiff, 
took  the  goods  and  chattels  aforesaid;  and  thereupon  it  was  in  such  manner 
proceeded,  that  by  the  said  court  it  was  considered  that  the  plaintiff  should 
have  a  return  of  the  said  goods  and  chattels,  to  be  delivered  to  him;  which 
said  judgment  remams  in  full  force  and  effect:  And  the  plaintiff  in  fact 
says,  that  the  goods  and  chattels  aforesaid,  to  the  said  J.  R.,  by  reason  of 
the  said  replevin  so  as  aforesaid  delivered,  to  places  obscure  and  unknown 
were  eloigned,  whereby  they  can  not  be  returned  or  delivered  to  the  plaint- 
iff; and  the  plaintiff  the  goods  and  chattels  aforesaid,  by  the  occasion  afore- 
said, has  wholly  lost,  and  is  without  remedy:  To  the  damage  of  the 
plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc.' 

If  a  sheriff  fails  to  take  a  bond  from  the  plaintiff,  before  re- 
plevying the  property,  or  returns  an  insufficient  bond,  he  is 
liable  to  pay  to  the  party  injured  all  damages  which  he  may 
sustain  in  consequence  of  such  neglect,  to  be  recovered  by  an 
action  on  the  case  in  the  circuit  court.* 

See  form  No.  246,  a7ite,  and  cases  there  cited. 

No.  346.    For  overloading  and  immoderately  driving  a  horse. 

{Commence  as  in  No.  204,  ante.)    For  that  whereas  the  plaintiff,  on,  etc. ,  in , 
etc. ,  had  delivered  to  the  defendant  a  certain  horse  of  the  plaintiff,  of  the 

value  of dollars,  to  drive  from,  etc.,  to,  etc.;  but  the  defendant,  on  the 

same  day,  in  the  county  of aforesaid,  so  grievously  overloaded,  and 

so  immoderately  and  with  such  unreasonable  swiftness  drove  the  said 
horse,  that  the  said  horse  there  afterwards,  on  the  same  day,  by  means  of 
such  immoderate  overloading  and  unreasonable  driving,  there  died.     To 

'  rearce  v.  Humphreys,  14  Serg.  (1895),  1257;  2  Starr  &  Curtis'  Stat. 
&  R.  23.  '  2014;    People  v.    Robinson,  89   111. 

2  Rev.  Stat.  (1893),  1173;  Rev.  Stat.       159;  People  v.  Core,  85  111.  248. 


CASE.  669 

the  damage  of  the  plaintiff  of dollars,  and  therefore  he  brings  his  suit, 

etc. 

Where  a  person  hires  a  horse,  he  is  bound  to  use  it  with 
moderation,  and  if  he  does  not,  and  an  injury  is  occasioned, 
he  will  be  liable  in  case  therefor.' 

A  gratuitous  bailee  of  a  horse — a  person  who  borrows  the 
horse  of  another  for  use,  without  compensation — is  bound  to 
use  extraordinary  care.  The  expense  incurred  by  the  borrower 
for  the  keeping  of  the  horse,  is  not  such  a  compensation  to 
the  lender  as  changes  the  gratuitous  character  of  the  bail- 
ment.^ 

See  the  form  of  a  Declaration  in  Assumpsit,  ante^  Xo.  G9,  and 
the  authorities  there  cited. 

No.  34.7.    Against  a  physician,  for  neglect,  etc.,  in  treatment  of  plaintiff. 

(Commencement  as  in  No.  335,  ante.)  For  that  whereas  the  defendant, 
before  and  at  the  time  of  committing  the  grievances  hereinafter  mentioned 
in  the  county  aforesaid,  was  exercising  the  profession  of  a  physician,  and 
the  plaintiff,  on,  etc.,  and  while  the  defendant  was  so  exercising  such  pro- 
fession, there  retained  and  employed  the  defendant,  as  such  physician,  for 
reward,  to  attend  and  treat  the  plaintiff  for  the  cure  of  the  plaintiff  of  a 
certain  sickness  and  malady  under  which  he  was  then  and  there  suffering; 
and  thereupon  the  defendant,  as  such  physician,  then  and  there  accepted 
such  retainer  and  employment,  and  entered  upon  the  treatment  of  the 
plaintiff  in  pursuance  thereof,  and  continued  such  treatment  for  the  space 

of days  then  next  following  :    Yet  the  defendant,  not  regarding  his 

duty  as  such  physician,  during  that  time  there  so  unskillfully  and  negli- 
gently conducted  himself  in  that  behalf,  that  by  and  through  his  want  of 
skill  and  care  the  said  sickness  and  malady  of  the  plaintiff  then  and  there 
became  greatly  increased  and  aggravated,  and  the  plaintiff  then  and  there 
underwent  great  and  unnecessary  anguish  and  distress,  and  became  and 
wiis  greatly  disordered,  reduced  and  weakened  in  body,  and  so  remained 
for  a  long  time,  to  wit,  hitherto,  during  all  which  time  the  plaintiff  suf- 
fered great  pain,  and  was  hindered  and  prevented  from  transacting  his 
affairs  and  business;  and  also,  by  means  of  the  premises,  the  plaintiff  has 
been  obliged  to  pay,  and  has  paid,  to  divers  other  physicians,  divers  sums 

of  money,  amounting  to dollai-s,  in  and  about  endeavoring  to  be  cured 

of  his  said  sickness,  malady  and  disorder  :  To  the  damage  of  the  plaintiff 
of dollars,  and  therefore  he  brings  his  suit,  etc.^ 

•  Newton  v.  Pope,  1  Cowen  109;  see  '  7  Ohio  (part  2),  123;  2  Wils.  359; 

Bennett  V.  O'Brien,  37  111.  250.  1  H.  Bla.  158;  Seai-l  v.  Prentice,  8 

^Bennett  v.   O'Brien,  37  111.  250;  East348;  ffaucA:t;  v.  jEZooper,  32  Eng. 

see  Howard  v.  Babcock,  21  111.  259.  C.  L.  510. 


670  CASE. 

When  a  person  assumes  the  profession  of  a  physicnan  and 
surgeon,  the  law  holds  him  responsible  for  any  injury  from  a 
want  of  reasonable  care,  skill  and  diligence  in  his  practice, 
unless  the  services  rendered  were  gratuitous,  in  which  case 
gross  negligence  will  alone  make  him  liable.'  But  the  high- 
est degree  of  care  and  skill  is  not  required."  Where  he  does 
not  profess  to  be  a  physician,  however,  nor  to  practice  as  such, 
and  is  merely  asked  his  advice  as  a  friend  or  neighbor,  he  does 
not  incur  any  professional  responsibility.* 

No.  34s.     Against  an  attorney  for  negligence  in  prosecfiding  an  action. 

{Commence  as  in  No.  335,  ante.)  For  that  whereas  the  defendant,  before 
and  at  the  time  of  committing  the  grievances  hereinafter  mentioned,  in  the 
county  aforesaid,  was  following  the  profession  of  an  attorney  at  law;  and 
the  plaintiff  on,  etc.,  and  while  the  defendant  was  so  following  such  pro- 
fession, there  retained  and  employed  the  defendant,  as  such  attorney,  for 

reward,  to  prosecute  and  conduct  a  certain  action  of  assumpsit,  in  the 

Court  of  the  said  county,  at  the term  then  next  following,  at  the  suit 

of  the  plaintiff,  against  one  E.  F. ,  for  the  recovery  of  a  certain  sum  of 

money,  to  wit, ,  dollars,  which  the  plaintiff  tlien  claimed  to  be  due  him 

from  the  said  E.  F. ;  and  thereupon  the  defendant,  on,  etc.,  aforesaid,  there 
accepted  such  retainer,  and  entered  upon  such  employment :  Yet  the  de- 
fendant, not  regarding  his  duty  or  his  said  retainer  and  employment,  did 
not  prosecute  and  conduct  or  manage  the  said  action  with  due  and  proper 
care,  skill  and  diligence,  but  on  the  contrary  thereof  prosecuted,  conducted 
and  managed  the  same  in  such  a  careless,  unskillful  and  improper  manner, 
and  with  such  want  of  due  and  proper  care,  skill  and  diligence  in  that  be- 
half, that  the  said  action  afterwards,  to  wit,  on,  etc. ,  there  became  and 
was  wholly  abortive  and  of  no  avail,  and  the  plaintiff  then  and  there  was 
forced  to  be,  and  he  was  then  and  there  nonsuited;  (or  if  a  verdict  teas 
found  against  him,  or  otherwise,  state  the  fact  accordingly,)  whereby  the 
plaintiff  was  and  has  been  hitherto  not  only  hindered  and  prevented  from 
recovering  his  said  claim  from  the  said  E.  F.,  but  is  likely  to  lose  the  same; 
and  also  has  incurred  and  paid  to  the  said  E.  F.  a  large  sum  of  money,  to 

wit, dollars,  for  his  costs  and  charges  in  and  about  his  defense  to  the 

said  action;  and  has  also  incurred  the  loss  of  and  paid  a  large  sum  of  money, 
to  wit, dollars,  for  the  plaintiff' s  costs  and  charges  in  and  about  prose- 

^Ritcheyv.  West,  23  111.  385;  3Ic-  "^^  111.  232;  Utley  v.  mcrns,  70  111. 

Nevins  v.  Lowe,  40  111.  209.  ^62;  Hilliard  on  Torts,  225;  Moss  v. 

'Holtzman  v.    Hoy,  118    111.  534;  Pardridge,  9  Bradw.  490;    Sims  v. 

McNevinsv.  Lowe,  40  111.  209;  Fisher  Parker,  41  111.  App.  286. 

V.  Nicolls,  2  Bradw.  484;  Quinn  v.  '^^^^•'  ^^^^^^^  v-  ^^icolls,  2  Bradw. 

Donova7i,    85  111.     194;    Barnes  v.  484;  Qimin  v.  Do7iova7i,  85  111.  194; 

Means,  82  111.  879;  Kendall  v.  Brown,  ^^^"^  v-  l^inncy,  98  111.  214. 


CASE.  671 

cuting  and  conducting  the  said  action:  To  the  damage  of  the  plaintiff  of 
dollars,  and  therefore  he  brings  his  suit,  etc' 

An  attorney  at  law  who  assumes  to  exercise  the  duties  of 
his  office  in  behalf  of  another,  for  hire  and  reward,  will  be 
held  to  employ  in  his  undertaking  a  reasonable  degree  of  care 
and  skill;  and  if  injury  results  to  the  client  for  the  want  of 
such  a  degree  of  reasonable  care  and  skill,  the  attorney  will 
be  liable  to  the  extent  of  the  injury  sustained." 

The  question  of  negligence  is  one  for  the  opinion  of  the 
jury.' 

If  diligence  would  have  been  ineffectual,  the  defendant 
must  prove  it.*  In  such  case  he  will  be  only  liable  for  nominal 
damages.' 

For  further  observations  upon  the  liability  of  attorney's,  see 
chapter  entitled  "  Attorneys  at  Law,"  post. 

No.  349.    Against  railroad  company,  as  common  carrier,  for  not  deliver- 
ing goods. 

(Commence  as  in  No.  327,  ante.)  For  that  whereas  the  defendant,  on, 
etc.,  was  possessed  of  and  using  and  operating  a  certain  railroad,  and  was 

a  common  carrier  of  goods  and  chattels  thereon  for  hire,  to  wit,  from 

to ;  and  the  plaintiff  on,  etc.,  aforesaid,  at,  etc.,  aforesaid,  caused  to 

be  delivered  to  the  defendant,  and  the  defendant  then  and  there  received 

of  the  plaintiff, boxes,  containing  divers  goods,  to  wit,    (specify  the 

articles)  of  the  plaintiff,  of  the  value  of  dollars,  to  be  safely  and 

securely  carried  by  the  defendant,  from aforesaid  to aforesaid, 

and  at  the  last-named  place  to  be  safely  and  securely  delivered  for,  (or  "to,'' 
as  the  case  may  be,)  the  plaintiff,  for  certain  reward  to  the  defendant  in 
that  behalf:    Yet  the  defendant  did  not  safely  and  securely  carry  the  said 

boxes  and  their  contents  aforesaid  from aforesaid  to  aforesaid, 

and  at  the  last-named  place  safely  and  securely  deliver  the  same  for  (or 
"  to,"  as  the  case  may  be.)  the  plaintiff;  but  on  the  contrary  thereof,  by  the 
negligence  of  the  defendant  and  its  servants  in  that  behalf,  the  said  boxes 
and  their  contents  aforesaid,  afterwards,  to  wit,  on  the  day  aforesaid,  in, 
etc.,  aforesaid,  became  and  were  wholly  lost  to  the  plaintiff:  To  the  dam- 
age of  the  plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc. 

'2  Chit.  PI.  (11  Am.  Ed.)  669.  ^Reece  v.  Rigby,  4  B.  &  A.  202. 

^Stevens  v.    Walker,  55  111.  151;  *  Bourne  v.  Digg,  2  Chit.  Rep.  311; 

Cox  V.  Livingston,  2  Watts  &  Serg.  see    1    Campb.    176;    2    Salk.    515; 

103;    Fitch  v.  Scott,  3  How.  (Miss.)  Peake's  Rep.  162. 

316;    Gilbert  v.   Williains,  8  Mass.  *  Grayson    v.   Wilkinson.  5  S.  & 

51;   see   Walker  v.  Stevens,  79  111.  M.   268;    Walker  v.    Goodman,    21 

193;  Hughes  v.  Ziegler,  69  111.  38.  Ala.  647. 


672  CASK. 

A  second  count,  for  not  carrying  within  a  reasonable  time, 
may  be  framed  from  the  second  count  in  I^o.  70,  ante^  page  120. 

A  carrier  is  an  insurer  of  the  safe  delivery  of  the  goods  to 
the  person  to  whom  they  are  consigned  and  can  not  escape  lia- 
bility on  the  ground  that  deception,  imposition  or  fraud  were 
resorted  to  by  an  impostor  to  obtain  from  the  agent  of  the 
carrier  the  goods  intrusted  to  his  care.' 

The  consignee  is  presumptively  the  owner  of  the  goods  trans- 
ported by  a  carrier,  and  delivery  to  him  without  notice  of  dif- 
ferent ownership  discharges  the  carrier,  but  it  is  the  duty  of 
the  carrier  to  ascertain  whether  a  bill  of  lading  was  delivered 
to  the  shipper,  and  if  so,  to  retain  the  property  until  demanded 
by  one  claiming  thereunder." 

The  acceptance  by  a  carrier,  for  transportation,  of  goods 
marked  to  a  place  beyond  the  terminus  of  its  own  line,  and  its 
giving  a  receipt  therefor,  constitute  d^,  prima  facie  contract  to 
carry  and  deliver  at  the  point  so  marked.' 

See  observations  upon  the  liability  of  common  carriers,  fol- 
lowing precedent  No.  71,  ante,  page  130,  and  the  cases  there 
cited. 

No.  350.  Against  a  seller  of  intoxicating  liquors,  on  the  statute  ^ — Action 
by  the  widow  of  a  physician,  for  causing  his  habitual  intoxication  and 
thereby  his  death,  and  the  loss  of  her  means  of  support,  etc. 

{Commence  as  in  No.  335,  ante.)  For  that  whereas  the  plaintiff,  before 
and  on,  etc.,  in,  etc.,  was  the  wife  of  one  G.  B.,  and  so  continued  to  be 
until  the  time  of  his  death  as  hereinafter  mentioned;  and  the  said  G.  B., 
on  the  day  aforesaid,  and  for  a  long  time  next  preceding  that  day.  there  ex- 
ercised the  profession  of  a  physician,  and  derived  therefrom  a  large  yearly 
income,  to  wit,  the  yearly  sum  of  thousand  dollars,  and  was  also  pos- 
sessed of  moneys  and  property  amounting  in  value  to  a  large  sum  of  money, 

to  wit,  the  sum  of thousand  dollars,  and  by  means  thereof  was  enabled 

to  and  did  provide  a  comfortable  and  liberal  maintenance  as  well  for  him- 
self as  for  the  plaintiff  and  for  one  H.  B.,  then  and  still  being  the  minor 
son  of  the  said  G.  B.  and  the  plaintiff:  And  on  the  day  aforesaid,  and  on 
divers  other  days  between  that  day  and  the  death  of  the  said  G.  B.,  the  de- 
fendant there  sold  and  gave  intoxicating  liquors  to  him,  the  said  G.  B.,  and 
thereby  caused  him,  the  said  G.  B. ,  to  become,  and  he  during  that  time  there 
was,  habitually  intoxicated;  and  so  being  habitually  intoxicated,  he,  the 

^Ex.  Co.  v.  Shearer,  160  111.  215.  *  Starr  &  Curtis'  Stat.,  971;  Rev. 

^Bankv.  R.  R.  Co.,  160  111.  401.  Stat.  (1893),  613;    Rev.   Stat.  (1895), 

3i2.  R.  Co.  v.  Simon,  160  111.  648.        661. 


CASE.  073 

6aid  G.  B.,  in  consequence  thereof ,  during  the  time  last  aforesaid ,  there 
wasted  and  squandered  all  his  moneys  and  property,  and  became  greatly 
impoverished,  reduced,  degraded  and  wholly  ruined,  as  well  in  his  mind 
and  body  as  in  his  estate,  and  neglected  and  ceased  to  exercise  or  attend  to 
the  duties  of  his  said  profession,  or  any  other  calling  or  business  whatso- 
ever, or  in  any  manner  to  earn  or  provide  a  livelihood  for  himself  or  the 
plaintiff ,  or  their  said  minor  son;  [and  also  thereby  the  plaintiff,  during 
that  time,  was  there  compelled  to  and  did  lay  out  divers  sums  of  money, 
amounting  to  a  large  sum,  to  wit, dollars,  of  her  own  moneys  and  earn- 
ings in  and  about  the  care,  nui-sing  and  maintenance  of  the  said  G.  B. ,  and 
for  medicines  and  the  services  of  physicians  for  him,  and  in  and  about  the 
maintenance  of  the  plaintiff  and  her  said  minor  son:]  and  in  further  conse- 
quence of  the  habitual  intoxication  of  the  said  G.  B.  as  aforesaid,  so  by  the 
defendant  caused  as  aforesaid,  he,  the  said  G.  B.,  on,  etc.,  there  died:  By 
means  of  which  premises  the  plaintiff  has  been  and  is  injured  in  her  [property 
and]  means  of  support,  and  deprived  of  the  same  [and  has  been  and  is  com- 
pelled to  support  herself  and  her  said  minor  son  by  her  own  labor].  Where- 
fore the  plaintiff  says  that  she  is  injured,  and  has  sustained  damage  to  the 

amount  of dollars;  and  by  force  of  the  statute  in  such  case  made  and 

provided,  an  action  has  accrued  to  her  to  demand  and  have  of  the  defend- 
ant that  sum  of  money;  and  therefore  the  plaintiff  brings  her  suit,  etc. 

No.  351.    Against  a  seller  of  intoxicating  liquors,  and  his  landlord,  07i  the 
statute, '  for  injury  done  by  an  intoxicated  person. 

{Title  of  court,  etc.,  as  in  No.  327,  ante.)  A.  B.,  plaintiff,  by  G.  H.,  his  at- 
torney, complains  of  C.  D.  and  E.F.,  defendants,  of  a  plea  of  trespass  on  the 
case:  For  that  whereas  the  said  C.  D.,  on,  etc.,  in  etc.,  in  a  certain  building 
and  premises  by  him  then  and  there  occupied,  did  sell  and  give  intoxicating 
liquors  to  one  L.  M.,  and  thereby  caused  the  intoxication  of  him,  the  said  L. 
M.;  and  the  said  E.  F.,  before  that  time  and  then,  being  the  oumer  of  the 
said  building  and  premises,  and  having  knowledge  that  intoxicating  liquors 
were  to  be  sold  therein,  there  permitted  the  occupation  of  the  said  building 
and  premises  by  the  said  C.  D. :  and  thereupon  the  said  L.  M.,  so  being  in- 
toxicated, and  in  consequence  thereof,  then  and  there  (here  set  foi'th  the 
vrrongful  act  done  hy  the  intoxicated  person,  and  the  consequent  damage,  the 
same  as  in  an  action  against  such  person).    Wherefore  the  plaintiff  says 

that  he  is  injured,  and  has  sustained  damage  to  the  amount  of dollars; 

and  by  force  of  the  statute  in  such  case  made  and  provided,  an  action  has 
accrued  to  him  to  demand  and  have  of  the  defendants  that  sum  of  money; 
and  therefore  the  plaintiff  brings  his  suit,  etc. 

Section  9  of  the  "act  to  provide  for  the  licensing  of,  and 
against  the  evils  arising  from  the  sale  of  intoxicating  liquors, 
is  as  follows : 

» 1  Starr  &  Curtis'  Stat.  971;  Rev.  Stat.  (1893)  613;  Rev.  Stat.  (1895)  661. 
43 


674:  CASE. 

"  Every-  husband,  wife,  child,  parent,  guardian,  employer  or 
other  person,  who  shall  be  injured  in  person  or  property,  or 
means  of  support,  by  any  intoxicated  person,  or  in  consequence 
of  the  intoxication,  habitual  or  otherwise,  of  any  person,  shall 
have  a  right  of  action  in  his  or  her  own  name,  severally  or 
jointly,  against  any  person  or  persons  who  shall,  by  selling  or 
giving  Intoxicating  liquors,  have  caused  the  intoxication,  in 
whole  or  in  part,  of  such  person  or  persons;  and  any  per- 
son owning,  renting,  leasing  or  permitting  the  occupation 
of  any  building  or  premises,  and  having  knowledge  that 
intoxicating  liquors  are  to  be  sold  therein,  or  who,  having 
leased  the  same  for  other  purposes,  shall  knowingly  permit 
therein  the  sale  of  any  intoxicating  liquors  that  have  caused, 
in  whole  or  in  part,  the  intoxication  of  any  person,  shall  be 
liable,  severally  or  jointly,  with  the  person  or  persons  selling 
or  giving  intoxicating  liquors  aforesaid,  for  all  damages  sus- 
tained, and  for  exemplary  damages;  *  *  and  a  married  woman 
shall  have  the  same  right  to  bring  suits,  and  to  control  the 
same  and  the  amount  recovered,  as  a  feme  sole;  and  all  dam- 
ages recovered  by  a  minor,  under  this  act,  shall  be  paid  either 
to  such  minor,  or  to  his  or  her  parent,  guardian,  or  next  friend, 
as  the  court  shall  direct;  and  the  unlawful  sale  or  giving 
away  of  intoxicating  liquors  shall  work  a  forfeiture  of  all 
rights  of  the  lessee  or  tenant,  under  any  lease  or  contract  of 
rent  upon  the  pr^piises  where  such  unlawful  sale  or  giving 
away  shall  take  place;  and  all  suits  for  damages  under  this 
act  may  be  by  any  appropriate  action  in  any  of  the  courts  of 
this  state  having  competent  jurisdiction."  i 

This  statute  is  held  to  be  highly  penal  in  its  character,  pro- 
viding a  right  of  action  unknown  to  the  common  law,  and 
should  receive  a  strict  construction. 

An  action  by  a  wife,  for  injuries  to  her  person,  occasioned 
by  the  drunkenness  of  the  husband,  can  not  be  sustained  with- 
out  showing  an  assault,  or  some  actual  violence,   or  some 

'  1  Starr  &  Curtis  971;  Rev.  Stat.,  Drummond,  16  Bradw.  641;    O'Hal- 

(1893)  613;  Rev.  Stat.  (1895)  661;  see  loran  v.  Kingst&n,  16  Bradw,  659; 

King  v.  Haley,  86  111.  1G6;  Reed  v,  Flynn  v.  Fogarty,  106  111.  263;  Low- 

Thovipson,  88  111.  245;   Holmes   v.  ry  v.  Coster,  91  111.  182;  Bell  v,  Cas- 

Nooe,   15  Bradw.  164;   Johnson  v.  sem,  158  111.  45. 


CASE.  675 

physical  injury  to  the  person  or  the  health.  Mental  anguish, 
disgrace,  or  loss  of  society  or  companionship,  constitute  no 
element  for  the  recovery  of  damages  under  the  statute.' 

By  the  common  law  it  is  not  a  tort,  for  which  an  action  lies, 
to  either  sell  or  give  away  intoxicating  liquors,  and  such  an 
act,  at  the  common  law,  is  not  culpable  negligence  that  will 
impose  a  legal  liability  for  damages  upon  the  vendor  or  donor 
of  such  liquor.  The  right  to  recover  damages  for  such  an  act 
is  purely  statutory." 

Section  9  of  the  dram  shop  act  does  not  apply  to  persons 
who  are  not  directly  or  indirectly,  or  in  any  way  to  any  extent, 
engaged  in  the  liquor  traffic;  and  the  right  of  action  therein 
given  to  one  injured  in  her  means  of  support,  is  not  intended 
to  be  given  against  one  who,  in  his  own  house,  or  elsewhere, 
gives  a  glass  of  intoxicating  liquor  to  a  friend  as  a  mere  act  of 
courtesy  or  hospitality,  and  without  any  purpose  or  expectation 
of  pecuniary  gain  or  profit.* 

It  has  been  held  that  it  was  the  intention  of  the  legislature 
in  the  passage  of  the  two  sections  to  deal  only  Avith  landlords 
and  their  property  and  those  having  a  rentable  interest  in  the 
buildings  and  premises  that  they  could  control  at  the  time,  and 
that  it  was  not  intended  to  include  those  who  only  have  re- 
versionary and  contingent  interests  and  who  are  not  in  any  way 
responsible  for  the  renting,  control  or  disposition  of  the  prop- 
erty.* 

The  two  years  statute  of  limitations  does  not  apply  to  an 
action  brought  under  section  9,  chapter  43,  of  the  dram  shop 
act.' 

Intoxication  caused,  in  whole  or  in  part,  by  several  sales 
and  by  several  persons,  creates  a  joint  liability,  and  each  per- 
son, who,  by  sale  or  gift,  contributes  to  such  intoxication,  may 
be  sued  jointly."  In  suits  under  section  9  of  the  dram  shop 
act,  the  plaintiff  may  proceed  against  any  and  all  persons 
jointly  or  severally  who  may  have  caused  the  intoxication  in 
whole  or  in  part,  without  reference  to  whether  they  have 
equally  contributed  to  the  injuries  complained  of.     They  stand 

>  Freese  v.  Tripp,  70  111.  496.  *  Castle  v.  Fogerty,  19  Bradw,  442. 

«  Cruse  V.  Aden,  127  111.  231.  ^  O'Learyv.  Frishy,  17  Bradw.  r)o3. 

3  Cruse  V.  Aden,  127  111.  231.  « OLeary  v,  Friahy,  17  Bradw.  553. 


676  CASE. 

upon  the  same  footing  as  persons  engaged  in  a  joint  tort,  each 
beino;  liable  for  the  entire  damage,' 

To  make  a  liquor  dealer  liable  under  the  statute,  he  must 
create  the  very  intoxication,  habitual  or  otherwise,  from  which 
the  injury  follows.  During  the  time  the  sales  are  going  on, 
the  party  using  the  liquor  must  be  contracting  by  the  use  of 
it,  in  whole  or  in  part,  the  disease  of  which  he  afterwards 
dies." 

In  an  action  by  a  widow  to  recover  for  an  injury  to  her 
means  of  support  b}^  the  death  of  her  husband,  occasioned  by 
the  sale  to  him  of  intoxicating  liquors  by  the  defendant,  the 
jury  may  take  into  consideration  in  assessing  her  damages, 
not  only  the  wages  and  earnings  of  her  husband,  but  also  the 
age  and  probable  life  of  the  husband  till  terminated  by  natural 
causes,  together  with  all  other  facts  and  circumstances  shown 
in  evidence.  In  case  of  the  husband's  death,  the  loss  to  tl  e 
wife's  means  of  support  is  co-extensive  with  her  life,  and  the 
general  average  of  the  husband's  contributions  can  only  be 
ascertained  from  proof  of  his  Avages  and  earnings,  which  fur- 
nish her  means  of  support.* 

If  an  intoxicated  person  fall  into  a  stream  and  be  drowned,  or 
should  go  on  a  railroad  track  and  be  there  run  over  by  a  loco- 
motive and  killed,  by  reason  of  being  incapable  of  exercising 
proper  caution  or  taking  proper  care  of  himself,  the  proximate 
cause  of  his  death  would  be  intoxication,* 

In  an  action  by  a  widow  against  a  dram  shop  keeper  and 
his  lessor,  to  recover  for  an  injury  to  her  means  of  support,  it 
is  error  for  the  court  to  so  instruct  the  jury  as  to  make  the 
rio-ht  of  recovery  depend  upon  the  question  whether  the  plaint- 
iff has  been  injured  in  her  means  of  support  "  by  the  sale  or 
gift  of  intoxicating  liquor "  to  her  husband.  Intoxication 
produced  by  the  liquor  sold  or  given,  and  not  the  mere  gift  or 
sale  of  the  liquor,  must  be  the  cause  of  injury  to  the  means  of 
support.  In  such  action,  it  is  necessary  for  the  plaintiff  to 
show  the  sale  or  gift  of  intoxicating  liquor  to  the  deceased, 

^BncJcivorth  v.  Crawford,  24  111.  ^Betting  v.  Hohhett,  142  111.  72. 

App.  603.  *  Meyer  v.  Butterbrodt,  146111. 131. 

^  Westphal  v.  Austin,  41  111,  App. 
648. 


CASE.  677 

and  also  to  show  intoxication  resulting  from  the  liquor  so  sold 
or  given,  and  injury  resulting  from  such  intoxication.' 

In  an  action  on  the  bond  of  a  dram  shop  keeper  by  a  widow, 
to  recover  damages  for  being  deprived  of  her  means  of  support 
by  the  sale  of  intoxicating  liquors  to  her  husband,  causing  his 
intoxication,  the  submission  to  the  jury  of  the  question  of  the 
giving  of  such  liquors  to  the  husband  is  not  error,  where  the 
declaration  alleges  the  giving  as  well  as  the  sale  of  such  liquors 
to  him,  and.  there  is  some  evidence,  though  slight,  of  the  gift 
of  such  liquor  to  the  husband.' 

The  sureties  on  the  bond  are  not  liable  to  exemplary  dam- 
ages, but  only  for  such  actual  damages  as  the  party  for  whose 
use  the  action  is  brought  may  sustain  either  in  person,  property 
or  means  of  support.^ 

Where  a  dramshop  keeper  continues  to  sell  intoxicatincr 
liquors  to  a  man  in  the  habit  of  drinking  to  excess,  in  wanton 
disregard  or  defiance  of  the  request  and  warning  of  the  wife 
of  the  latter,  in  consequence  of  which  the  husband  becomes 
intoxicated,  and  the  wife  is  thereby  actually  injured  in  her 
means  of  support,  the  jury  may,  in  an  action  by  the  wife,  give 
her  exemplary  damages." 

Where  saloon  keepers,  with  knowledge  that  a  person  is  in 
the  habit  of  becoming  intoxicated,  and  while  he  is  in  fact  in- 
toxicated, sell  him  liquor  and  he  is  killed  in  consequence  of  his 
intoxication,  they  will  be  liable  to  exemplary  damages  in  an 
action  against  them  by  the  widow  of  the  person  so  losing  his 
life.' 

Where  the  action  is  brought  for  injury  to  a  wife's  7neans  of 
support,  it  is  not  necessary  to  show  that  she  has  been  at  any 
time,  in  whole  or  in  part,  without  present  means  of  support. 
It  is  enough  that  the  means  of  her  future  support  have  been 
cut  off,  or  diminished  below  what  is  reasonable  and  competent 
for  a  person  in  her  station  in  life,  and  below  what  they  would 
otherwise  have  been. 

The  rule  of  damages  in  such  case  should  be,  not  the  amount 
of  loss  occasioned  to  the  husband's  estate,  but  the  diminu- 

'  McMahon  v.  Sankey,  133  111.  636.  \McMahon  v.  Sarikey,  133  El.  636; 

^  Smith  V.  People,  141  IlL  447.  Wolf  v.  Johnson,  152  III.  210. 

^Ibid.  ^  Kennedy  y.  Sullivan,  136  IIL  94. 


678 


CASE. 


tion,  if  any,  thereby  resulting  to  the  wife's  means  of  present 
and  future  support.  And  the  liability  of  the  defendant,  in 
such  cases,  is  not  confined  to  injuries  resulting  from  drunk- 
enness immediately,  and  during  its  continuance,  but  extends 
to  injuries  resulting  from  insanity,  sickness  or  inability  induced 
by  intoxication.' 

Exemplary  damages  can  not  be  awarded  as  a  punishment  in 
this  action,  for  the  reason  the  statute  provides  that  the  public 
shall  avail  itself  of  its  punitive  provisions,  which  are  fines 
and  imprisonment  in  the  county  jail;  the  penalty  of  impris- 
ment  to  be  enforced  by  indictment.^ 

The  following  cases  arising  under  the  dram  shop  act  may 
also  be  consulted.^ 


ACTION  ON  THE  CASE  FOR  SLANDER,    ETC. 

Slander  is  the  defaming  of  a  man  in  his  reputation,  or  ren- 
dering him  an  object  of  ridicule,  by  words  spoken  or  written, 
from  whence  an  injury  in  character,  or  property,  or  feeling, 
arises  or  may  arise  to  him.  Written  or  printed  slanders  are 
libels. 


1  Mnlford  v.  Cleicell,  21  Ohio  St, 
191;  Brannan  v.  Adams,  76  111.  331; 
Shngart  v.  Egan,  83  111.  56;  Con- 
frey  v.  Stark,  73  111.  187;  3IcCannv. 
Roach,  81  111.  213. 

2  See  Freese  v.  TiHpj),  70  111.  496. 

3  Roth  V.  Eppy,  80  111.  283;  Hackett 
V.  Smelsley,  77  111.  109;  Horn  v. 
Smith,  77  111.  381;  McEvoy  v.  Hum- 
johrey,  77  111.  388;  Reget  v.  Bell, 
77  111.  593;  Meidel  v.  Anthis,  71  111. 
241;  Emory  v.  Addis,  71  111.  273; 
Kellerman  v.  Ariiold,  71  111.  632; 
Fentz  V.  3Ieadows,  72  111.  540;  Keedy 
x.Hotve,  72  111.  133;  Confrey  v.  Stark, 
73  111.  187;  Brant igam  v.  While, 
73  111.  561 ;  Brannon  v.  Silvemail, 
81  111.  434:  Bates  v.  Davis,  76  111. 
222;  Schimvielfenig  v.  Donovan,  13 
Bradw.  47;  Kadgin  v.  Miller,  13 
Bradw.  474;  Cobb  v.  People,  84  111. 
511;  Loicrey  v.  Coster,  91  111.  182; 
People  V.  Crotty,  93  lU.  180;  Carroll 


V,  People,  13  Bradw.  206;  Wright  y. 
People,  101  111.  126;  Moorev.  People, 
109    111.    499;    Holmes    v.  Nooe,  15 
Bradw,  164;  Johnson  v.  Drummond, 
16  Bradw.  641;  CHalloranw.  Kings- 
ton, 16  Bradw.  659;  Hart  v.  Duddle- 
son,  20  111.  App.  618;  Aden  v.  Cruse, 
21  111.  App.  391;  Murphy  v.  Curran, 
24  111.  App.   475;    People  v.   B rum- 
back,   24  111.   App,    501 ;    Mayers  v. 
Smith,   25  111.   App.    67;    Clears  v. 
Stanley,  34  111.  App.  341 ;    Hayes  v. 
Waite,  36  111.  App.  399;  Campbell  v. 
Magruder,  39   111.    App.   606;    Mar- 
shall V.  Laughran,  47  111.  29;  West- 
phal  V.   Austin,   41   111.   App.    648 
Lloyd   V.   Kelly,  48  111,   App.   554 
Hellmuth  v.  Bell,  49  111.   App.  626 
Lane  v.    Tippy,   52  111.   App.   533 
Brant  v.  Mclntee,   53   111.  App.  467 
Hanewacker  v,  Ferman,  152  111.  321; 
Jury  V.  Ogde7i,  56  111.  App.  100;  Bell 
V.  Cassen,  56  lU.  260. 


CASE.  679 

"With  respect  to  verbal  slander,  actionable  words  are  of  two 
kinds :  first,  those  actionable  in  themselves,  without  proof  of 
special  damage;  secoiully,  those  actionable  only  in  respect  to 
some  actual  consequential  damage. 

Words  of  ihQ  first  description  must  impute  the  guilt  of  some 
offense  for  which  the  party,  if  guilty,  might  be  indicted  and 
punished  by  the  criminal  courts;  such  as  calling  a  person  a 
traitor,  thief,  or  highwayman,  or  to  say  that  he  is  guilty  of 
perjurjr,  forgery,  murder,  larceny,  adultery,  fornication,  and 
the  like;  and  although  the  imputation  of  guilt  may  be  o-eneral 
without  stating  the  particulars  of  the  pretended  crime,  it  is 
actionable/ 

Words  charging  a  person  with  having  a  disease,  or  distem- 
per, which  renders  hi-m  unfit  for  society,  are  actionable  in 
themselves.*  An  action  can  therefore  be  sustained  for  callino- 
a  man  a  leper;'  but  charging  another  with  hamng  had  a  con- 
tagious disease  is  not  actionable,  as  he  will  not  on  that  account 
be  excluded  from  society.*  A  charge  which  renders  a  man 
ridiculous,  and  impairs  his  enjoyment  of  general  society,  and 
injures  those  rights  of  friendly  intercourse  and  mutual  benev- 
olence which  man  has  with  respect  to  man,  is  also  actionable.' 
To  charge  unfitness  in  an  officer,  who  holds  an  oflSce  to 
which  profit  or  emolument  is  attached,  either  in  respect  to 
morals  or  inability  to  discharge  the  duties  of  the  office,  is 
actionable.* 

To  impute  a  want  of  integrity,  or  capacity,  whether  mental 
or  pecuniary,  in  the  conduct  of  a  profession,  trade  or  business 
in  which  the  party  is  engaged,  is  actionable; '  as  to  accuse  an 

^Holt  V.  Schofield,  6   Term  694;  Taylor  v.  Hall,  2  Str.   1189;    Bac. 

Walton  V.  Singleton,  7  S.  &  R.  449;  Abr.,  Slander,  b.  2. 

Shaffer  V.  Kintzer,!  Binn.  537;  Eck-  *Holt  on  Libel,  221;  Williams  v. 

art    V.     Wilson,    10    S.    &    R.   44;  Holdredge,  22  Barb.  396. 

IVidrig  v.    Oliver,    13   Johns.    124;  *Holt  on  Libel,  207;    Starkie  on 

Martin  v.  Stillwell,  13  Johns.  275;  Slander,  100. 

Gosling  v.  Morgan,  32  Penn.  273;  '  Cavip  v.  Martin,  23  Conn.  86; 
Wright  v.  Paige,  36  Barb.  438;  Sumner  v.  JJtley,  7  Conn.  257;  Car- 
Strauss  V.  Meyer,  48  111.  385.  roll  v.  White,  33  Barb.  615;  Xelson 

« Bac.  Abr.,  Slander,  b.  2.  v.  Borchenius,  52  IlL  236;  Storey  v. 

3 Starkie  on  Slander,  97.  People,  79  111.  45;  Rearick  v.  Wilcox, 

*  Carslake  v,  Majjle,  2  Term  473;  81  III.  77;  Clay  v.  Peojile,  86  111.  147; 

Clifford  V.  Cochrane,  10  Bradw.  570. 


680  CASE. 

attorney  or  artist  of  inability,  of  inattention,  or  want  of  integ- 
rity,' or  charging  a  clergyman  with  being  a  drunkard.^ 

Of  the  second  class  are  words  which  are  actionable  only  in 
respect  of  special  damage  sustained  by  the  person  slandered. 
Though  the  law  will  not  permit  in  these  cases  the  inference 
of  damage,  yet  when  the  damage  has  actually  been  sustained, 
the  person  aggrieved '  may  support  an  action  for  the  publica- 
tion of  an  untruth,'  unless  the  words  are  spoken  in  the  asser- 
tion of  a  supposed  claim;  *  but  if  maliciously  spoken,  an  action 
lies/ 

The  charge  must  be  false.*  The  falsity  of  the  charge  is  to 
be  implied  until  the  contrary  is  shown.' 

The  slander  must,  of  course,  be  published,  that  is,  communi- 
cated to  a  third  person;  and  if  verbal,  then  in  a  language 
which  he  understands;  otherwise  the  plaintiff's  reputation  is 
not  impaired.* 

To  render  words  actionable,  they  must  be  uttered  without 
lecal  occasion.  On  some  occasions  it  is  justifiable  to  utter 
slander  of  another;  in  others  it  is  excusable,  if  done  without 
express  malice."  It  is  justifiable  for  an  attorney  to  use  scan- 
dalizing expressions  in  support  of  his  client's  cause,  and  per- 
tinent thereto.'"  Members  of  congress  and  other  legislative 
assemblies  can  not  be  called  to  account  for  anything  said  in 
debate.'^ 

1 3  Wils.  187;  2  Bl.  750.  *Bac.  Abr.,  Slander,  D.  4. 

« McMillon  V,  Birch,  1  Binn.  178.  '®  Brook  v.    Montague,   Cro.  Jac. 

^  1  Lev.  53;  1  Sid.  79;  3  Wood.  210;  90;  Hodgson  v.  Scarlett,  1   B.  &  A. 

8traus  v.  Meyer,  48  la  385.  232;  v.  Moore,  1  M.  &  S.    284; 

4  Com.  Dig.,  Act.  on  Case  for  Def.  Harding  v.  Greening,  1  Holt  (N.  P. 

J)  3o_  531;  Kean  v.  McLaugldin,  2  Serg.  & 

'  1  Eoll.  Abr.  36;  Craft  v.  Boite,  1  R.  469;  McMillan  v.  Birch,  1  Binn. 

Saund.   243;  Hartley  v.  Herring,  8  178;    Swear    v.  Birch,     4     Yeates 

Term    130;     Vicars   v.     H^iZcoar,     8  (Penn.)   822;    Mowei^  v.  Watson,   11 

-j^QgX  1.  ^^'    ^^^!    Shelf er   v.     Gooding,    2 

"5  Co.  125;  Cass  V.  Anderson,  33  Jones'  Law  (N.  C.)    175;    Hoar  v. 

Y^  182.  Wood,  3  Met.  193;  Hastings  v.  Lusk, 

1  Maitland  v.  Goldney,  3  East  436;  22  Wend.  410;  Marsh  v.  Ellsworth, 

Craft  V.  Boite,  1  Saund.  242.  36  How.  (N.  Y.)  532. 

»  Frank  v.  Kaminshy,  109  111.  26;  "  Newell  on  Def.  and  Slan.  420. 
Craft  V.  Boite,  1  Saund.  242;  Shef- 
fill  V,  Van  Demen,  13  Gray  304. 


CASE.  GSl 

Malice  is  essential  to  the  support  of  an  action  for  slanderous 
words,  but  malice  is  in  general  to  be  presumed  until  the  con- 
trary is  proved.' 

The  testimony  of  the  hearers  as  to  the  sense  in  which  they 
understood  the  words  spoken,  is  admissible.' 

In  Illinois  it  is  provided  by  statute  that  "  if  any  person 
shall  falsely  use,  utter  or  publish  words  which,  in  their  com- 
mon acceptation,  shall  amount  to  charge  any  person  with  hav- 
ing been  guilty  of  fornication  or  adulter}^,  such  words  so 
spoken  shall  be  deemed  actionable,  and  he  shall  be  deemed 
guilty  of  slander.  It  shall  be  deemed  slander,  and  shall  be 
actionable,  to  charge  any  person  with  swearing  falsely, 
or  with  having  sworn  falsely,  or  for  using,  uttering  or  publish- 
ing words  of,  to  or  concerning  any  person,  which  in  their 
common  acceptation  amount  to  such  charge,  whether  the 
words  be  spoken  in  conversation  of  and  concerning  a  judicial 
proceeding  or  not."  •* 

"  In  actions  for  slander  or  libel,  an  unproved  allegation  of 
the  truth  of  the  matter  charged  shall  not  be  deemed  proof  of 
malice,  unless  the  jury,  on  the  whole  case,  find  that  such  de- 
fense was  made  with  malicious  intent,  and  it  shall  be  compe- 
tent for  the  defendant  to  establish  the  truth  of  the  matter 
charged  by  a  preponderance  of  testimony."  * 

Where  the  defense  is  that  the  statements  made  were  privi- 
leged communications,  it  must  be  shown  that  the  words  were 
spoken  at  such  time  and  under  such  circumstances  as  would 
negative  the  supposition  of  malice  in  using  them.^ 

'  Bromage  v.  Prosser,  4  B.   &  C.  (1895)  1450;  Rev.    Stat.  (1893)   1352; 

247;  Craft  v.  Boite,   1  SauAd.    242,  Sanford  v.  Gaddis,  13  111.  329;  Spen- 

n.  2;   Weather  v.  Haicking,  1  Term  eer  v.  McMasters,  16  111.  405;  Wol- 

111;   Sutton  V.Johnson,!  Term  54A;  brecht  v.  Bumgarten,   26  111.   291; 

Harman  v.  Tappenden,  1  East  555;  Harbison  v.  Shook,  41  111.  141;  Flagg 

Maitland  v.   Goldney,  2  East  436;  v.  Roberts,  67  111.  485;    Mitchell  v. 

3IcKee  v.  Ingalls,  4:  Scam.  30;  Harry  Milholland,  106  111.175;    Tunnel  v. 

V.    Constantine,   14    La.    An.    795;  Fergusoii,  17  Bradvv.  76. 

Gaul  V.  Fleming,  10  Ind.  253;  Colby  *  2  Starr  &  Curtis,  2286;  Rev.  Stat. 

V.  McGee,  48  111.  App.  294;  Gilmore  (1895)  1450;   Rev.  Stat.  (1893)  1353; 

V.  Litzelman,  41  111.  App.  541.  Haii-ver   v.    Haicver,    78    111.    412; 

«  Nelson  v.  Borchenius,  52  III.  236;  Schmisseur  v.  Kreilich,  92  111.  347. 

Starkie  on  Slander,  44.  '  -E^^«»^  v-  Badger,  23  111.  498;  Sny- 

3  2  Starr  &  Curtis,  2284;  Rev.  Stat.  d^r  v.  Degant,Alad.  578;  Wright  v. 


6S2  CASE. 

The  law  will  imply  malice  in  the  uttering  of  slanderous 
words,  and  heat  of  passion  does  not  rebut  the  malice  thus  im- 
plied; '  but  if  a  person  provoke  and  excite  such  passion  as 
results  in  the  use  of  slanderous  words,  that  fact  should  be  con- 
sidered in  mitigation.^  And  it  is  no  mitigation  of  the  offense 
to  show  that  the  person  slandered  was  quarrelsome." 

The  pecuniary  circumstances  of  the  defendant  may  be  given 
in  evidence  to  the  jury.'  An  infant  under  ten  years  of  age 
may  maintain  an  action,  by  her  next  friend,  for  slanderous 
words  charging  her  with  theft.^  The  defendant  may  show 
that  he  offered  an  explanation  of  the  offensive  words,  if  the 
explanation  was  a  part  of  the  same  conversation,  and  before 
the  same  auditor,  and  the  same  subject  Was  still  under  consid- 
eration or  in  dispute.' 

Where  the  defendant  pleaded  not  guilty,  and  filed  with  his 
plea  a  notice  of  justification,  which  was  read  to  the  jury,  but 
after  the  plaintiff  had  closed  his  case  was  erased  by  leave  of 
the  court,  it  was  held  that  such  conduct  might  be  considered 
by  the  jury  in  estimating  the  damage,  and  that  the  with- 
drawal of  the  notice  did  not  render  an  instruction  to  that  ef- 
fect improper.'  In  an  action  for  slander,  it  is  for  the  jury  to 
determine,  from  all  the  circumstances,  what  damages  ought 
to  be  given;  and  such  damages  are  not  necessarily  confined  to 
mere  pecuniary  loss  or  injury;  and  unless  the  jury  acted  from 
prejudice,  partiality  or  corruption,  the  verdict  should  not  be  dis- 
turbed.*   A  repetition  of  the  words  after  the  beginning  of  a  suit 

Paige,  SQ    Barb.  (N.  Y.)    438;     see  571;    but  see  Store?/ v.  £"0;'??/,  86  111. 

Wharton  v.  Wright,   30    111.    App.  461. 

343,  *  Stewart  v.  Howe,  17  111.  71;  York 

'  Hosley  v.    Brooks,   20    111.    115;  v.  Pease,  2  Gray  (Mass.)  283. 

Hatch  V.  Potter,  2  Gilm.   725;  Gaul  ^Winchellv.  Strong,  17  111.  597; 

V.  Fleming,  10  Ind.  253;  Hudson  v,  see  McKee  v.  Ingalls,  4  Scam.    30; 

Garner,  22  Mo.  423;  Hagan  v.  Heii-  Miller  v.  Johnson,  79  111.  58. 

dry,  18  Md.  177;  but  see  McKee  v.  ^  Beasley  v.  Meigs,  16111.  139. 

JngfaZZs,  4  Scam.  30;  Lamed  y.  Buff-  ^Spencer    v.   McMasters,    16    111. 

inton,  3  Mass.  553.  405;  Coleman  v.  Southwick,  9  Johns. 

2  Freeman  v.  Tinsley,  50  111.  497;  51;  2  Stark,  on  Sland.  105;  Symands 
Miller  v.  Johnson,  79  111.  58.  v.  Carter,  32  N.  H.  458;  Cramer  v. 

3  Hosley  v.  Brooks,  20  111.  115.  Noonan,  4  Wis.  231;  see  McNamara 
*  Hosley  v.    Brooks,   30   III.    115;       v.  A'wfir,  2  Gilm.  433. 

Forshee  v.  Abrams,  2  Clarke  (Iowa) 


CASE.  683 

for  slander  may  be  considered  b}^  the  jury  upon  the  question 
of  malice  and  in  aggravation  of  damages.' 

In  action  by  husband  and  wife  for  slander  of  the  latter,  it 
is  not  necessary  to  prove  that  the  plaintiffs  were  husband  and 
wife  at  the  time  the  slander  was  uttered,  if  it  appears  that  they 
were  married  when  the  suit  was  brouirht.'' 

Where  a  person,  acting  as  constable,  arrested  another,  and 
took  from  him  a  knife  and  other  articles,  and  the  arrested 
person  accused  him  of  theft,  it  was  held  that  if  the  words 
spoken  were  understood  to  relate  to  the  arrest,  they  were  not 
actionable.^  To  charge  a  person  with  pilfering  is  actionable.* 
Where  words  which  are  actionable  in  themselves  are  not 
spoken  under  circumstances  wiiich  render  them  privileged 
communications,  the  law  will  presume  malice,  which  can  not 
be  rebutted  under  the  general  issue;  and  it  is  no  defense  to  the 
party  that  he  believed  the  words  to  be  true.* 

It  is  not  actionable  to  charge  a  man  with  an  intent  to  com- 
mit a  crime.  The  word  "  thief  "  is  not  actionable,  unless  the 
defendant  intended  to  impute  a  crime,  which  the  law  will 
presume  if  a  contrary  intent  is  not  shown.*  It  is  said  that  if 
words  are  spoken  in  merriment  or  jest,  Avithout  malice,  they 
are  not  actionable; '  but  it  is  otherwise  where  there  is  malice 
and  intention  to  defame.     Drunkenness  is  no  excuse.* 

In  an  action  for  slander,  where  the  defendant  does  not  jus- 
tify, he  may  mitigate  the  damages  in  two  ways  only :  first,  by 
showing  the  general  bad  character  of  the  plaintiff;  second,  bv 
showing  any  circumstances  which  tend  to  disprove  malice,  but 
do  not  tend  to  prove  the  truth  of  the  charge.* 

^Stou-ell    V.    Beagle,  79    111.    525;  "<  McKee  v.  Itigalls,  4  Scam.  SO;  hut 

Halsey  v.  StiUman,  48  111.  App.  413;  see  2  Stark.  Ev.  464;  1  Hawks"    PI. 

Sheen  v.    Jouimal  Co.,  53  111.    App.  Cr.  356. 
267.  ^  McKee  v.  Ingalls,  4  Scam.  30. 

^  Spencer  V.  McMasters,  W  111.  iOi).  ^  Regnier  v.    Cabot,   2  Gilm.    34; 

^  Ay ersv.  Grider,  15  III.  S".  Young    v.     Bennett,    i    Scam.    43; 

*Becket  v.  Sterrett,  4  Blackf.  499.  Wetherbee  v.   Marsh,  20  N.  H.  561; 

^Gilmer  v.    Eubank,  13   111.    271;  Fuller  v.  Dean,  31  Ala.   654;    Bod- 

Gilmer  v.    Eubank,  13  111.    321;   see  xcell  v.  Sican,  3  Pick.  376;  Cooper  v. 

Darling  v.  Banks,  14  111.  46.  Barber,   24    Wend.    105;     Root    v. 

*  McKee  v.    Ingalls,  4   Scam.    30;  King,   7   Cow.  630;    Cole  v.  Grant 

Miller  v.  Johnson,  79  111.  58;  Stumer  3  Hai-rison  (N.  J.)  327. 
V.  Pitchman,  124  111.  250. 


6S4:  CASE. 

It  is  said  that  although  the  words  spoken  charge  an  offense 
to  have  been  committed  in  another  state,  which  is  not  punish- 
able where  the  suit  is  brought,  still  they  are  actionable.' 
Words  actionable  at  common  law,  spoken  in  one  sti.te,  are  ac- 
tionable in  another/ 

If  slanderous  words  are  spoken,  maliciously  or  not,  with  the 
belief  that  they  are  true,  giving  the  name  of  the  author  of 
them  does  not  mitigate  the  offense.*  So  if  a  libel  is  published, 
and  the  name  of  the  author  given,  the  publication  is,  neverthe- 
less, actionable.* 

Words  charging  a  person  with  having  forged  a  deposition 
are  actionable." 

And  to  charge  one  with  being  a  thieving  person,  or  to  say 
of  him  that  he  stole  and  ran  away,  is  actionable." 

To  charge  a  man  with  ravishing  a  cow  imports  bestiality, 
and  is  actionable.' 

The  words,  "  I  have  said  j^ou  stole  the  knife,  and  still  say 
it,"  are  actionable." 

To  say  that  a  woman  is  a  w^hore,  and  to  say  that  there  is  a 
rumor  that  she  is  such,  are  in  legal  contemplation  equally 
slanderous.' 

The  terms  "  bitch  "  and  "  slut,"  when  applied  to  a  woman 
and  taken  in  their   common  acceptance,  are  not  actionable 

To  charge  a  man  with  having  a  venereal  disease,  and  con- 
tracting marriage  with  that  disease  upon  him,  and  communi- 
cating it  to  his  wife,  "will  not  be  actionable  if  the  plaintiff  im- 
mediately after  his  marriage  had  the  disease  in  fact,  even 

^French  v.  Creath,  Breese  31;  ^ Kelley  y.  Dillon,  5  Ind.  42Q;  Dai- 
Johnson  V.  Dicken,  25  Mo.  580;  Poe  ley  v.  Reynolds,  4  Iowa  354;  Schmis- 
V.  Grever,  3  Sneed  (Tenn.)  664.  seur  v.  Kreilich,  92  111.  347;  Elamv. 
^LlnvilleY.  Earlyu-ine,  4  Blackf.  Badger,  23  111.  498;  Kodi  v.  Heide- 
469;  Offutt  V.  Early  wine,  4  Blackf.  man,  16  Bradw.  478;  Frank  v. 
460;  Afret  v.  Burch,  1  Blackf.  400.  Kaminsky,   109  111.  26;  Claypool  v. 

^  Jones  V.  Chapman,  5  Blackf.  88.  CAaypool,  56  111.  App.  17. 

*  Clarkson  v.  McCarty,  5  Blackf.  '« Ruby  v.  Murphy,   27  111.  App. 

5';'4^  394;    Claypool  v.    Claypool,  56  111. 

5  Atkinson  v.  Reding,  5  Blackf.  39.      App.  17;  K v.  H ,  20,Wis. 

^  Alley  Y.  Neely,^B\a.cM .  200.  252;   Sclmrich  v.  Kallman,  50   Ind. 

">  Harper  v.  Delp,  3  Ind.  225.  336;  Logan  v.  Logan,  77  Ind.  558. 

« Jseley  v.  Lovejoy,  8  Blackf.  463. 


CASE.  685 

though  there  may  be  proof  that  his  wife,  whom  he  married 
without  knowing  that  she  had  the  disease,  communicated  it  to 
him,' 

To  call  a  man  a  thieving  puppy  is  actionable,' 

To  charge  a  person  with  having  maliciously  killed  a  domes- 
tic animal  is  actionable,^ 

Charges  made  in  the  due  administration  of  justice  are  privi- 
leged, and  slander  and  libel  will  not  lie  upon  them.* 

Matter  contained  in  a  pleading  in  a  cause  filed  in  due  course 
of  a  judicial  proceeding  in  a  court  of  competent  jurisdiction  is 
privileged  if  pertinent  to  the  matter  in  controversy;  *  but  when 
a  ])arty  injects  into  a  pleading  defamatory  language  wholly 
irrelevant,  he  will  be  liable,' 

Declarations  for  slander  and  libel. — In  general,  three 
things  are  to  be  attended  to  in  framing  a  declaration  for  slan- 
der or  libel :  1st,  the  statement  of  extrinsic  facts  or  circum- 
stances (where  necessary,)  by  which  the  words  become  action- 
able; 2d,  the  colloquium,  or  averments  that  the  libelous 
or  slanderous  matter  relates  to  these  extrinsic  facts,  and  to 
the  plaintiff;  and  3d,  connecting  averments  or  innuendoes, 
by  which  such  parts  of  the  publication  or  words  as  want  ex- 
planation are  pointed  or  referred  to  the  extrinsic  facts  which 
have  been  previously  alleged.' 

1st.  As  to  the  statement  of  extrinsic  facts  or  circumstances. 
If  the  words  themselves  are  a  direct  unequivocal  charge,  and 
per  86  import  slanderous  or  libelous  imputations,  and  point 
directly  to  the  plaintiff,  as  that  "  A.  B.  has  committed  the 
crime  of  perjury,"  no  extrmsic  facts  or  circumstances  need  be 
averred.  So  where  the  meaning  can  be  collected  from  the 
defendant's  own  words,  no  averment  ought  to  be  made  as  to 
the  existence  of  any  circumstances  to  which  the  defendant 

^Goklerman  v,  Stearns,    7  Gray  ^  Strmiss  v.  3Ieyer,  48  lU.  SS5. 

(Mass.)  181,  ^  McLaughlin  v.  Coidey,  127  Mass. 

"  Little  V.  Barlotv,  26  Geo.  423.  316;   See  Ash  v.  Zwietusch,    159  111. 

3  Tottleben  v.   Blankenship,  58  ILL  455. 

App.  47.  ''  Young  v.  Gilbert,  93  111.  595;  see 

*Hibbard  v.  Ryan,   46  111.  App.  Young  v.  Richardson,  4  Bradw.  364; 

313;    Fagan  v.  Fries,   30  111.   App.  Broxni  v.    Burnett,   10  Bradw.  279; 

236.  Hill  V.  Miles,  9  N.  H.  9. 


686  CASE. 

might  possibly  allude;  since  it  is  now  settled  that  it  is  perfectly 
immaterial  to  the  maintenance  of  the  action,  whether  the  de- 
fendant invented  the  circumstances,  or  whether  they  really 
existed.  Therefore,  where  the  words  are  general,  no  explana- 
tion is  necessary  to  render  them  more  particular,  if  the  words 
themselves  impute  a  crime.* 

But  if  the  words  do  not  naturally  and  jper  se  convey  the 
meaning  the  plaintiff  would  wish  to  assign  to  them,  or  are 
ambiguous  and  equivocal,  and  require  explanation,  by  reference 
to  some  extrinsic  matter,  to  show  that  they  are  actionable,  it 
must  be  expressly  shown  that  such  matter  existed,  and  that 
the  slander  related  thereto.' 

'Thus,  at  common  law,  if  the  defendant  charged  the  plaintiff 
with  false  swearing,  a  colloquium  of  its  being  in  a  cause  pend- 
ing in  a  court  of  competent  jurisdiction,  and  on  a  point 
material  to  the  issue,  is  necessary.'  Under  the  statute  of  Illi- 
nois, however,  words  imputing  false  swearing  are  actionable, 
whether  spoken  in  a  conversation  concerning  a  judicial  pro- 
ceeding or  not.* 

With  respect  to  the  allegation  of  extrinsic  facts,  in  reference 
to  which  the  words  are  actionable,  care  should  be  taken  not 
to  allege  such  facts  too  minutely,  and  not  to  allege  more  than 
is  necessary,  lest  there  should  be  a  variance  between  the  alle- 
gation and  the  proof;  though  if  the  objection  to  the  proof 
relates  to  matters  which  may  not  only  be  taken  distributively, 
but  which  neither  bear  essentially  upon  the  libel  or  slander, 
nor  affect  its  character,  'and  enough  is  left  to  render  it  action- 

1 1  Swan's  Pr.  552;  1  Chit.  PI.  400-  v.  Munn,  13  Johns.  48;  Crookshank 

438;  Snyder  v.  Degant,  4  Ind.   578;  v.  Gray,  20  Johns.  344;  Hopkins  v. 

see  Harbison  v.  Shook,  41  lU.  141.  Bedle,    1    Caine    347;     Phillips    v. 

■•'  1  Chit.  PI.  400;  Hawkes  v.  Haw-  Haeffer,  1  Penn.  62;  Palmer  v.  Hun- 
key,  8  East  427;  Roberts  v.  Camden,  ter,  8  Mo.  512;  Sanderson  v.  Hub- 
9  East  93;  Bell  v.  Byrne,  13  East 554;  bard,  14  Vt.  462;  Van  Slyke  v.  Car- 
Case  V.  Buckley,  15  Wend.  327;  Liii-  penter,  7  Wis.  173;  Stancell  v.Pryor, 
ville  V.  Earlyivine,   4  Blackf.   469;  25  Geo.  40. 

Browny.Bro2vn,2SheY>l.Sn;Har-  *Sanford  v.    Gaddis,  IS   111.  329; 

ris    V.  Burley,    8    N.   H.    256;   see  Wolbrecht  v .  Bimigarten,  2Q  III.  291; 

Strauss  v.  Meyer,  48  111.  385.  Harbison  v.  Shook,  41  111.  141;  see 

^  Blair  V.  Sharp,  Breese,  30;  Niven  Elam  v.  Badger,  23  111,  498. 


CASE.  687 

able,  the  variance  will  be  immaterial.'  If  the  matter  referred 
to  is  material,  and  affects  the  char<^e  in  such  a  manner  that 
the  omission  of  it  would  alter  the  character  of  the  slander  or 
libel,  either  in  the  degree  in  which  it  is  charged  to  be  injurious, 
or  in  the  estimate  of  damages,  the  court  will  hold  the  plaintiff 
to  strict  proof."  But  if  the  extrinsic  facts  are  surplusage,  so 
that  the  words  alleged  in  the  declaration  are  actionable,  inde- 
pendently of  the  extrinsic  facts  and  the  colloqxdum^  the  variance 
will  be  unessential.^ 

2d.  The  colloquium,  and  averments  connected  therewith, 
show,  first,  (in  an  action  for  verbal  slander,)  that  the  de- 
fendant held  a  discourse,  and  usually  that  it  was  concerning 
the  plaintiff;  and  secondly,  that  the  slanderous  words  were 
spoken  in  the  same  discourse,  (or  the  libelous  words  were  pub- 
lished,) of  and  concerning  the  plaintiff;  and  if  there  is  a  pre- 
vious statement  of  extrinsic  facts  or  circumstances,  it  is  also 
averred  that  the  slanderous  matter  was  spoken  in  such  dis- 
course, (or  the  libelous  matter  wjs  published,)  of  and  concern- 
ing the  plaintiff.* 

The  colloquium  always  connects,  by  its  averments,  the 
plaintiff  and  the  extrinsic  facts  and  circumstances  with  the 
libelous  or  slanderous  words  set  out  in  the  declaration. 

3d.  The  innuendoes.  The  office  of  the  innuendoes  is  to 
explain  such  parts  of  the  libel  or  slanderous  words  as  are 
equivocal,  obscure,  or  need  explanation.  And  for  this  pur- 
pose, the  innuendoes  can  only  point  put  or  refer  to  the  extrin- 
sic facts,  etc.,  which  have  been  previously  alleged." 

^McGregor  v.  Thu-aites,  10  Eng.  7   Johns.    359;     Gidney  v.    Blake, 

C.  L.  R.  36;  Rex  v.  WHght,  18  Eng.  11  Johns.  54;  MilUgan  v.  Thome,  6 

C.  L.  R.  162;  1  Swan's  Pr.  553.  Wend.  413;   Nestle  v.    VanSlyck,  2 

^Rex  V.  florae,  2  Cowp.  672;  Rex  Hill.  282;  Sayrcv.  Jewett,  12  Wend. 

V.  Wright,  18  Eng.  C.  L.  R.  173;  see  135;  Tenney  v.  Clement,  10  N.  H.52; 

1  Chit.  PI.  401-403,  and  cases  there  see  Patterson  v.  Edwards,  2  Gilm. 

cited.  720, 

^Jacobs  V.  Fyler,  3  Hill  (N.  Y.)  ^ Stone  v.    Clark,    21    Pick.    51; 

572;  Harvey  v.  French,  28  Eng.  C.  Shencood  v.    Chace,   11  Wend.   38; 

L.  R.    514;    1   Swan's  Pr.    553;  see  Hopkins    v.    Beedle,    1    Caine  347; 

Elam  V.  Badger,  23  111.  498.  Crookslutnk  v.  Gray,  20  Johns.  344; 

<1  Chit.  PI.  403;  1  Stark,  on  SI  an-  Pratt  v.  Price,  11  Wend.  127;  Day- 

der  (2d  Ed.)  383;    Craft  v.  Boite,  I  ton    v.    Rocktvdl,    11    Wend.    140; 

Saund.  242  b,  n.  3;Lwidsa^v.SmfA,  GUman  v.   Loicell,   8    Wend.   573; 


688  CASE. 

These  three  parts  of  a  declaration  for  a  libel  or  slander  have 
been  referred  to,  because  it  is  so  common,  in  practice,  to  crowd 
into  the  innuendoes  what  should  be  averments  in  the  intro- 
ductory part  of  tlie  declaration.  The  general  rule,  which 
should  be  ever  kept  in  mind  when  framing  a  declaration  for 
libel  or  slander,  is  this :  that  an  innuendo  can  not  extend  or 
enlarge  the  sense  of  the  words  beyond  their  own  meaning, 
unless  something  is  put  in  the  previous  part  of  the  declaration 
for  the  innuendo  to  explain.  It  can  not  in  any  case  add  or  in- 
troduce new  matter  not  previously  stated.  It  can  not  supply 
the  w^ant  of  a  proper  colloquium,^  or  of  an  averment  of  the 
introductory  matter.  The  innuendo  can  simply  explain  what 
has  been  previously  averred  in  the  introductory  part  of  the 
declaration,  or  in  the  colloquium^  or  other  previous  averments.' 

Great  care  is  required  in  stating  the  words  correctly;  for  the 
plaintiff  must  prove  the  exact  words  laid  in  the  declaration,  or 
enough  of  the  same  words  to  make  out  the  slander.  But  it  is 
sufficient  to  prove  part  only  of  any  set  of  words  alleged,  if  the 
proved  part  is  itself  intelligible  and  actionable,  and  the  re- 
mainder is  neither  a  qualification  of  the  part  proved,  nor  neces- 
sary to  render  the  part  proved  intelligible."  It  is  not  sufficient, 
however,  to  prove  equivalent  words  of  slander,  or  different 
words  of  the  same  import.' 

il/cLattg^ryv.  Wefrnore,  6  Johns.  82;  neU  v.    Walker.   48  HI.    App.    331. 

1  Swan's  Pr.  554;  Patterson  v.   Ed-  '^Richards   v.  Bainngart,   56    111. 

ic>ards,2Gi\m.'720;Gaultv.  Babbitt,  App.   422;   Keefe  v.  Voight,   45   111- 

1  Bradw.  130;  Strader  v.  Snyder,  67  App.  620;  Stvord  v.  Martin,   23   111. 

111.   404;  Strauss  v.    Meyer,   48  111.  App.  304;  BiUer  v.   Gockley,  18  111. 

385;  Nelson  v.  Borchsenius,  52  111.  App.  496. 

236;  McGregor  v.  Eakin,  3  Bradw.  ^  Wallace  v.  Dixon,  82  111.  202; 
340;  Foval  v.  Hallett,  10  Bradw.  Schmisseur  v.  Kreilich,  92  111.  347; 
268;  Cliffordv.  Cochrane,  10  Bradw.  Slocum  v.  Kuykendall,  1  Scam.  187; 
570;  Schmisseur  y.  Kreilich,  92  111.  Patterson  v.  Kdwurds,  2  Gihn.  720; 
347.  Sanford  v.  Gaddis,  15  111.  228;  Nor- 
»  Swan's  Pr.  554;  Cro.  Car.  420;  1  ton  v.  Gordon,  16  111.  38;  Wilbom  v. 
Stark,  on  Slander  (Wend.  Ed.),  344;  Odell,  29  111.  456;  Crotty  v.  Morris- 
Craft  V.  Boite,  1  Saund.  243,  n.  4;  sey,  40  111.  477;  Harbison  v.  Shook, 
Patterson  v.  Edwards,  2  Gilm.  720;  41  111.  141;  Baker  v.  Young,  44  111. 
Townsend  on  Sland.  and  Lib.,  Sec.  42;  Olmstead\.  Miller,  1  Wend.  510; 
335,  and  cases  there  cited;  Uleryv.  Birch  v .  Benton,  26  Mo.  153;  Albin 
Stock  Exch.,  54  111.  App.  233;  Fin-  v.  Parks,  3  Bradw.  576;    Thomas  v. 


CASE. 


689 


With  respect  to  variances  from  omissions  (that  is,  omis- 
sions to  allege  in  the  count  all  the  words  spoken),  it  seems,  in 
case  of  oral  slander,  to  be  sufficient  to  set  out  the  words  which 
are  material,  and  it  is  not  even  necessary  to  state  words  which 
may  qualify  the  objectionable  ones.' 

An  allegation  spoken  affirmatively  will  not  be  sustained  by 
proof  of  Avords  spoken  interrogatively;  nor  will  proof  of  words 
spoken  to  a  person  sustain  a  declaration  which  charges  words 
spoken  of  a  person.' 

So,  proof  of  words  spoken  in  the  second  person,  will  not,  it 
seems,  support  an  allegation  of  words  spoken  in  the  third  per- 
son; ^  and  words  spoken  as  a  rumor,  or  as  the  words  of  another, 
will  not  support  words  alleged  unqualifiedly  as  the  defendant's.* 

Distinct  sets  of  slanderous  words,  importing  the  same  charge, 
and  said  to  have  been  spoken  at  the  same  time,  though  in  fact 
spoken  at  different  times,  may  be  put  into  the  same  count; 


Fischer,  71  111.  576;  Sword  v.  Martin, 
23  111.  App.  304;  NeweU  on  Def.  & 
Slander,  804,  805,  808. 

'  1  Stark,  on  Slan. 375;  Townsendon 
Slan.  &  Libel,  Sec.  265;  Sanford  v. 
Gaddis,  15  111.  228;  Norton  v.  Gor- 
don, 16  111.  38;  see  Illinois  cases, 
siipra;  Fox  v.  Vanderbeek,  5  Cow, 
513;  Nestle  v.  VanSlyck,  2  Hill  (N.  Y.) 
282;  Sumner  v.  Utley,  12  Vt.  257; 
Scott  V.  McKinnish,  15  Ala.  662; 
Hancock  v.  Stejihens,  11  Humph. 
(Tenn.)  507;  Iseley  v.  Lovejoy,  8 
Blackf.  462:  Nye  v.  Otui,  8  Mass.  122 
Whiting  v.  Smith,  13  Pick.  364 
Pond  V.  Hart  well,  17  Pick.  353 
Allen  V.  Perkins,  17  Pick.  369;  Miller 
V.  Miller,  8  Johns.  74;  McClintock 
V.  Crick,  4  Iowa  453;  Wheeler  v. 
Robb,  1  Blackf.  330;  Berry  v.  Dry- 
den,  7  Mo.  324;  Coghill  v.  Chandler, 
33  Mo.  115;  Frank  v.  Kaminsky,  109 
111.  26. 

^King  v.  Berry,  4  Term  217;  San- 
ford V.  Gaddis,  15  111.  228;  3Iiller  v. 
Miller,  8  Johns.  74;  see  McConnell 
44 


V.  McCoy,  7  Serg.  &  Rawle  223 
Patterson  v.  Edwards,  2  Gilm.  720 
Slocumb  V,  Kuykendall,  1  Scam.  187 
Berry  v.  Dryden,  7  Mo.  324;  Wat- 
son V.  Miisick,  2  Mo.  29;  Linville  v. 
Earlywine,  4  Blackf.  469;  Creelman 
V.  Marks,  7  lb.  281;  Williams  v. 
Bryant,  4  Ala.  44;  Easley  v.  Moss, 
9  lb.  266;  Fox  v.  Vanderbeek,  5  Cow. 
513;  Olmstead  v.  Miller,  1  Wend. 
506;  King  v.  Whitley,  7  Jones  (N.  C.) 
L.  R.  529;  Wilbom  v.  Odell,  29  111. 
456;  Stees  v.  Kenible,  27  Penn.  St. 
112;  Lancaster  v.  Heu'son,  2  M.  & 
R.  176;  Pasley  v.  Kemp,  22  Mo.  409; 
2  Stephens'  N.  P.  2576;  Coleman  v. 
Playsted,  36  Barb.  (N.  Y.)  26. 

^ King  v.  Berry,  4  Term  217;  Mc- 
Connell V.  McCoy,  7  Serg.  &  Rawle 
223;  Wolf  V.  Rodifer,  1  Har.  &  J. 
409;  Miller  v.  Miller,  8  Johns.  74; 
but  see  Cro.  Eliz.  503;  Tracy  v. 
Hankins,  1  Binn.  395,  n. ;  Huffman 
V.  Shumate,   4  Bibb  (Ky.)  515. 

« Bell  V.  Byrne,  13  East  554. 


690  CASE. 

and  if  any  one  of  the  sets  is  sustained  by  proof,  the  plaintiff  is 
entitled  to  a  verdict  on  the  set  proved.' 

Where  slanderous  words  are  uttered  in  a  foreign  language, 
the  declaration  should  set  out  the  words  in  that  language,  with 
a  translation.' 

An  averment  of  words  spoken  in  English  will  not  be  sup- 
ported by  evidence  of  words  spoken  in  a  foreign  language." 

The  place  of  the  offense  is  not  material;  like  a  date  it  may 
be  proven  differently  from  that  alleged,  and  it  is  not  neces- 
sary that  the  place  be  stated  under  a  videlicet." 

No.  352.     General  form  of  declaration  for  slander. 

(Commence  as  in  No.  335,  ante.)  For  that  whereas  the  plaintiff,  before 
and  at  the  time  of  the  committing  by  the  defendant  of  the  several  griev- 
ances hereinafter  mentioned,  was  a  person  of  good  name,  credit  and  repu- 
tation, and  deservedly  enjoyed  the  esteem  and  good  opinion  of  his 
neighbors  and  other  worthy  citizens  of  this  state:  Yet  the  defendant,  well 
knowing  the  premises,  but  contriving  and  maliciously  intending  to  injure 
the  plaintiff,  aud  to  bring  him  into  public  scandal  and  disgrace,  on,  etc.,  in 
the  county  aforesaid,  in  a  certain  discourse  which  the  defendant  then  and 
there  had  of  and  concerning  the  plaintilf,  in  the  presence  and  hearing  of 
divers  persons,  falsely  and  maliciously,  in  the  presence  and  hearing  of 
those  persons,  spoke  and  published,  of  and  concerning  the  plaintiff,  the 
false,  scandalous,  malicious  and  defamatory  words  following,  that  is  to 
say,  "He,  etc..  {setting  out  the  words,  with  proper  innuendoes,  etc,  as  in 
No.  35Jt.,  post.) 

Second  count.— And  afterwards,  to  wit,  on,  etc.,  aforesaid,  in,  etc., 
aforesaid,  in  a  certain  other  discourse  which  the  defendant  then  and 
there  had,  in  the  presence  and  hearing  of  divers  other  persons,  of  and 
concerning  the  plaintiff,  the  defendant,  further  contriving  and  intend- 
ing as  aforesaid,  in  the  presence  and  hearing  of  those  persons  falsely  and 
maliciously  spoke  and  published  of  and  concerning  the  plaintiff  these 
other  false,  scandalous,  malicious  and  defamatory  words  following,  that  is 
to  say,  "He,  etc.,  {setting out  theivords,  icith proper  inmiendoes.) 

By  means  of  the  committing  of  which  said  several  grievances  by  the  de- 

1  Long  V.  Hitchcock,  3  Ohio  274;  Schmisseur  v.  Kreilich,  92  111.  347 
Steph.  N.  P.  2577;  Rathbun  v.  Koch  v.  Heideman,  16  Bradw.  478 
Emigh,  6  Wend.  407;  Diogt  v.  Tan-  ^  Zenobio  v.  Axtell,  6  Term  162 
ner,  29  Wend.  190;  Hall  v.  Nees,  27  Wormuth  v.  Cramer,  3  Wend.  394 
111.  411;  2  Esp.  191;  Townsend  on  A'er.^c/i  v.  SZu.sser.  12  Ind.  453;  Kiene 
Sland.  &  Lib.,  Sec.  365.  v.  Ruff,  1  Clarke  (Iowa)  482;  see  re- 

2  Kersch  v.  Slusser,  12  Ind.  453;  marks  under  form  No.  356,  post. 
Townsend  on  Slan.  &  Lib.,  Sec.  330;  "  Boyd  v.  Humphries,  53  111.  App. 
Heard  on   Slan.  &  Lib.,   Sec.   210;  422. 


CASE.  691 

fendant,  the  plaintiff  has  been  and  is  greatly  injured  in  his  said  good  name, 
credit  and  reputation,  and  brought  into  pubHc  scandal  and  disgrace,  and 
has  been  and  is  shunned  and  avoided  by  divers  persons,  and  has  been  and 

is  otlier wise  injured:    To  the  damage  of  the  plaintiff  of dollars,  and 

therefore  he  brings  his  suit,  etc. 

No.  353.    For  words  charging  an  unmarried  woman  with  fornication. 

{Commence  as  in  No.  385,  ante. )  For  that  vt^hereas  the  plaintiff,  before 
and  at  the  time  of  the  committing  by  the  defendant  of  the  several  griev- 
ances hereinafter  mentioned,  was,  and  always  has  been,  virtuous  and 
chaste,  and  was  a  person  of  good  name  and  reputation,  and  deservedly 
enjoyed  the  esteem  and  good  opinion  of  her  neighbors  and  other  worthy  cit- 
izens of  this  state:  Yet  the  defendant,  well  knowing  the  premises,  but  con- 
triving and  maliciously  intending  to  injure  the  plaintiff  in  her  said  good 
name  and  reputation,  and  to  bring  her  into  public  scandal  and  disgrace, 
and  to  cause  it  to  be  suspected  and  believed  by  divers  persons  that  she  was 
imchaste,  on,  etc.,  in,  etc.,  in  a  certain  discourse  which  the  defendant  then 
and  there  had,  in  the  presence  and  hearing  of  divers  persons,  of  and  con- 
cerning the  plaintiff,  falsely  and  maliciously,  in  the  presence  and  hearing 
of  the  said  persons,  spoke  and  published  of  and  concerning  the  plaintiff  the 
false,  scandalous,  malicious  and  defamatory  words  following,  that  is  to  sa}^ 
etc.  {Jiere  set  out  the  ivords.  with  innuendoes,  asiti  the  next  form),  meaning 
thereby  then  and  there  to  charge  that  the  plaintiff  had  been  and  was  guilty 
of  fornication.  {Add  other  counts  if  desired,  and  conclude  as  follows:)  By 
means  of  the  committing  of  which  said  several  grievances  by  the  defend- 
ant, the  plaintiff  has  been  and  is  greatly  injured  in  her  said  good  name  and 
reputation,  and  brought  into  public  scandal  and  disgrace,  and  has  been  and 
is  shunned  and  avoided  by  divers  persons,  and  has  been  and  is  otherwise 

injured.     To  the  damage  of  the  plaintiff  of dollars,  and  therefore  she 

brings  her  suit,  etc. ' 

No.  354..    For  words  charging  perjury. 

{Commence  as  in  No.  335,  ante.)  For  that  whereas  the  plaintiff,  before 
and  at  the  time  of  the  committing  by  the  defendant  of  the  several  griev- 
ances hereinafter  mentioned,  was  a  person  of  good  name,  credit  and  repu- 
tation, and  deservedly  enjoyed  the  esteem  and  good  opinion  of  his  neighbors, 
and  other  worthy  citizens  of  this  state;  and  whereas,  also,  before  the  com- 
mitting of  those  grievances,  to  wit,  on,  etc.,  in  the  county  aforesaid,  a  cer- 
tain action  was  pending  before  E.  F.,  one  of  the  justices  of  the  peace  in  and 
for  the  county  aforesaid,  wherein  the  People  of  the  State  of  Illinois  was 
plaintiff,  and  one  G.  H.  was  defendant,  and  on  the  trial  of  which  said 
action  then  and  there,  before  the  said  justice,  the  plaintiff  was  duly  sworn 
and  examined,  and  did  give  his  evidence,  as  a  witness,  touching  the  matters 
in  controversy  therein.  Yet  the  defendant,  well  knowing  the  premises,  but 
contriving  and  maliciously  intending  to  injure  the  plaintiff  in  his  said  good 

>  Elam  V.  Badger,  23  111.  500. 


692  CASE. 

name,  credit  and  reputation,  and  to  bring  hiai  into  public  scandal  and  dis- 
grace with  and  among  his  neighbors  and  acquaintances,  and  to  cause  it  to 
be  suspected  and  believed  by  them  and  others  that  the  plaintiff  had  been 
guilty  of  false  swearing,  afterwards,  to  wit,  on,  etc.,  in  the  county  afore- 
said, in  a  certain  discourse  which  the  defendant  then  and  there  had,  in  the 
presence  and  hearing  of  divers  persons,  of  and  concerning  the  plaintiff,  and 
of  and  concerning  the  matters  and  premises  aforesaid,  falselj^  and  mali- 
ciouslj',  in  the  presence  and  hearing  of  the  said  persons,  spoke  and  published, 
of  and  concerning  the  plaintiff,  and  of  and  concerning  the  matters  and 
jwemises  aforesaid,  the  false,  scandalous,  malicious  and  defamatory  words 
following,  that  is  to  say:  '"You  "  (meaning  the  plaintiff)  "  have  sworn  to  a 
damned  lie:  "  "  You  "  (meaning  the  plaintiff)  "  have  sworn  to  a  damned  lie 
before  Esquire  E.  F.,"  (meaning  the  said  E.  F.,  the  justice  of  the  peace 
aforesaid,)  "  and  I "  (meaning  the  defendant)  "  can  prove  it."  "!fou" 
(meaning  the  plaintiff)  "  have  sworn  to  a  lie,  and  I  "  (meaning  the  defend- 
ant) "  can  prove  it  by  j'our"  (meaning  the  plaintiff's)  "  own  daugliter." 
"  You  "  (meaning  the  plaintiff)  "  swore  that  you  "  (meaning  the  plaintiff) 
" never  spoke  to  me "  (meaning  the  defendant)  "  previous  to  that  time" 
(meaning  the  time  of  the  trial  aforesaid)  "  in  the  street;  and  that  is  a 
damned  lie,  and  I "  (meaning  the  defendant)  "  can  prove  it."  "You" 
(meaning  the  plaintiff)  "  have  sworn  falsely,  and  I  "  (meaning  the  defend- 
ant) "  can  prove  it."  "  You  "  (meaning  the  plaintiff)  "  committed  perjury, 
and  I  "  (meaning  the  defendant)  "  can  prove  it  by  your  "  (meaning  tlie 
plaintiff's)  "  daughter."  "  You  "  (meaning  the  plaintiff)  "  conmiitted  per- 
jury." "  You"  (meaning  the  plamtiff)  "  swore  falsely."  "  You  "  (mean- 
ing the  plaintiff)  "  swore  to  a  lie."  "  You  "  (meaning  the  plaintiff)  "  swore 
to  a  damned  lie."  Meaning  and  intending  thereby  to  charge  that  the 
plaintiff,  on  the  trial  of  the  action  aforesaid,  had,  as  a  witness  as  aforesaid, 
sworn  falsely. 

Second  count. — And  also  for  that  whereas  afterwards,  to  wit,  on,  etc., 
aforesaid,  in,  etc.,  aforesaid,  in  a  certain  other  discourse  which  the  defendant 
then  and  there  had,  of  and  concerning  the  plaintiff,  in  the  presence  and  hear- 
ing of  divers  persons,  the  defendant  falsely  and  maliciously,  in  the  presence 
and  hearing  of  those  persons,  spoke  and  published,  of  and  concerning  the 
plaintiff,  the  false,  scandalous,  malicious  and  defamatory  words  following, 
that  is  to  say  :  "  You  "  (meaning  the  plaintiff)  "  perjured  yourself."  "  He  " 
(meaning  the  plaintiff)  "  perjured  himself."  "  He"  (meaning  the  plaintiff) 
"  committed  perjury."  "You''  (meaning  the  plaintiff)  "swore  to  a  lie." 
"  You  "  (meaning  the  plaintiff)  "  swore  to  a  damned  lie."  "  You  "  (meaning 
the  plaintiff)  "  swore  to  a  lie,  and  I"  (meaning  the  defendant)  "can  prove  if 
By  means  of  the  speaking  and  publishing  of  which  said  several  false,  scan- 
dalous and  malicious  words  by  the  defendant,  the  plaintiff  has  been  and  is 
greatly  injured  in  his  good  name,  credit  and  reputation,  and  brought  into 
public  scandal  and  disgrace,  and  has  been  and  is  otherwise  injured:    To 

the  damage  of  the  plaintiff  of dollars,  and  therefore  he  brings  his  suit, 

etc.^ 

»  WolbrecM  v.  Bumgarten,  26  111.  291. 


CASE.  693 

No.  355.    For  words  charging  larceny, 

{Commence  as  in  No.  335,  ante.)  For  that  whereas  the  plaintiff,  before 
and  at  the  time  of  the  committing  by  the  defendant  of  the  several  griev- 
ances hereinafter  mentioned,  was  a  person  of  good  name,  credit  and  repu- 
tation, and  deservedly  enjoj'ed  the  esteem  and  good  opinion  of  all  his  neigh- 
bors, and  other  worthy  citizens  of  this  state:  Yet  the  defendant,  well 
knowing  the  premises  but  contriving  and  malicious!}^  intending  to  injure 
the  plaintiff,  and  to  bring  him  into  public  scandal  and  disgrace,  on,  etc.,  in, 
etc.,  in  a  certain  discourse  which  the  defendant  then  and  there  had,  of 
and  concerning  the  plaintiff,  in  the  presence  and  hearing  of  divets  persons, 
falsely  and  maliciously,  in  the  presence  and  hearing  of  the  said  persons, 
spoke  and  published,  of  and  concerning  the  plaintiff,  the  false,  scandalous, 
malicious  and  defamatory  words  following,  that  is  to  say:  "  He"  (meaning 
the  plaintiff)  "  stole  my  corn."  "  He  "  (meaning  the  plaintiff)  "  and  S.  H. 
stole  my  corn."  "  He  "  (meaning  the  plaintiff)  "  stole  my  hogs."  "'  He  " 
(meaning  the  plaintiff)  " stole  my  eggs  and  apples."  "  He"  (meaning  the 
plaintiff)  "  keeps  S.  H.  to  steal  my  (meaning  the  defendant's)  corn,  and  he" 
(meaning  the  plaintiff)  "  conceals  it."  Meaning  and  intending  thereby  to 
charge  that  the  plaintiff  had  feloniously  stolen,  taken  and  carried  away  the 
goods  and  chattels  of  the  defendant. 

{A  second  count  m/xy  be  here  inserted,  if  deemed  necessary,  concluding  the 
declaration  as  follows:) 

By  means  of  the  committing  of  which  said  several  grievances  by  the  de- 
fendant, the  plaintiff  has  been  and  is  greatly  injured  in  his  said  good  name, 
credit  and  reputation,  and  brought  into  public  scandal  and  disgrace,  and 
has  been  and  is  shunned  and  avoided  by  divers  persons,  and  has  been  and  is 

otherwise  injured:    To   the  damage  of  the  plaintiff  of dollars,  and 

therefore  he  brings  his  suit,  etc. ' 

No.  356.    For  ioords  spoken  in  a  foreign  language. 

{Commence  as  in  No.  335,  ante.)  For  that  whereas  the  plaintiff,  before 
and  at  the  time  of  the  committing  by  the  defendant  of  the  several  griev- 
ances hereinafter  mentioned,  was  a  person  of  good  name  and  reputation, 
and  deservedly  enjoyed  the  esteem  and  good  opinion  of  his  neighbors,  and 
other  worthy  citizens  of  this  state:  Yet  the  defendant,  well  knowing  the 
premises,  but  contriving  and  maliciously  intending  to  injure  the  plaintiff, 
and  to  bring  him  into  public  scandal  and  disgrace,  on,  etc.,  in,  etc.,  in  a 
certain  discourse  which  the  defendant  then  and  there  had,  of  and  concern- 
ing the  plaintiff,  in  the  presence  and  hearing  of  divers  persons,  falsely  and 
maliciously,  in  the  presence  and  hearing  of  the  said  divers  persons,  who 
then  and  there  understood  the  German  language,  spoke  and  published,  of 
and  concerning  the  plaintiff,  the  false,  scandalous,  malicious  and  defama- 
tory w'ords  following,  in  the  said  German  language,  that  is  to  say,  (here  set 
forth  the  words  in  the  German  language);  which  said  words  signified  and 
meant,  in  the  English   language,  as  follows,  that  is  to  say  {here  set  forth  a 

«  HaU  V.  Nees,  27  111.  411. 


694  CASE. 

correct  translation  of  the  words  in  English,  with  innuendoes,  as  in  Nos.  354 
and  355,  ante.) 

{Here  insert  a  second  count,  if  deemed  necessary,  and  conclude  as  fol- 
lows : ) 

By  means  of  the  committing  of  which  said  several  grievances  by  the  de- 
fendant, the  plaintiff  has  been  and  is  greatly  injured  in  his  said  good  name 
and  reputation  and  brought  into  public  scandal  and  disgrace;  and  has  been 
and  is  shunned  and  avoided  by  divers  persons,  and  has  been  and  is  other- 
wise injured:    To  the  damage  of  the  plaintiff  of  dollars,  and  therefore 

he  brings  his  suit,  etc. 

Where  the  words  were  spoken  or  published  in  a  foreign  lan- 
guage the  foreign  words  must  be  set  forth/  together  with  a 
translation  into  English,  To  set  forth  the  words  alone,  or  the 
translation  alone,  would  not  be  sufficient/  The  omission  to 
set  forth  a  translation  may  be  rectified  by  an  amendment,' 

On  the  general  issue,  the  plaintiff  must  prove  the  correct- 
ness of  the  translation;  but  the  accuracy  of  the  translation  is 
admitted  by  a  demurrer.* 

No.  357.    By  a  tradesman,  for  words  imputing  insolvency,  etc. — Alleging 

special  damages. 

(Commence  as  in  No.  335,  ante.)  For  that  whereas  the  plaintiff,  before  and 
at  the  time  of  the  committing  by  the  defendant  of  the  several  grievances 
hereinafter  mentioned,  exercised  and  carried  on,  and  still  does  exercise  and 
carry  on,  the  business  of  a  vierclumt,  in,  etc.,  and  has  always  conducted 
the  same  with  punctuality  in  dealing,  keeping  his  engagements  and  paying 
his  debts,  and  was  deservedly  held  in  gi-eat  credit  and  esteem  by  his  neigh- 
bors, and  those  with  whom  he  had  dealings  in  his  trade  and  business  as 
such  merchant,  whereby  he  daily  acquired  divers  gains  and  emoluments  in 
his  said  trade  and  business,  to  the  support  and  maintenance  of  himself  and 
his  family,  and  the  great  increase  of  his  fortune.  Yet  the  defendant,  well 
knowing  the  premises,  but  contriving  and  wrongfully  and  maliciously  in- 
tending to  injure  and  destroy  the  good  name,  reputation  and  credit  of  the 
plaintiff  in  his  said  trade  and  business,  and  to  cause  him  to  be  regarded  as 
a  person  of  no  credit,  worth  or  substance,  and  in  insolvent  circumstances, 
on,  etc.,  in  the  county  aforesaid,  in  a  certain  discoui-se  which  the  defend- 
ant then  and  there  had,  of  and  concerning  the  plaintiff,  and  his  circum- 

1  Zenobio  v.  Axtell,  6  Term  162.  '  Zenobio  v.  Axtell,   6  Term  162; 

2  Wormuth  v.    Cramer,  3  Wend,       Rahauser  v.  Barth,  3  Watts  28. 


394;  Kersch  v.  Slusser,  12  Ind.  453 
Hickley  v,  Orosjean,  6  Blackf.  351 
Rahauser  v.  Barth,  3  Watts  28 
Keenholts  v.  Becker,  3  Denio  346 
Heard  on  Lib,  and  Slander,  Sec.  210. 


*  Hickley  v.  Gro.sjean,  6  Blackf, 
351;  Townshend  on  Slan.  and  Lib. 
Sec.  330, 


CASE.  695 

stances,  and  his  said  trade  and  business,  in  the  presence  and  hearing  of 
divers  persons,  falsely  and  maliciously,  in  the  presence  and  hearing  of  the 
said  persons,  spoke  and  published  of  and  concerning  the  plaintiff,  and  his  cir- 
cumstances, and  his  said  trade  and  business,  the  false,  slanderous,  malicious 
and  defamatory  words  following,  that  is  to  say:  "The  property  of  B." 
(meaning  the  plaintiff)  "will  be  in  the  hands  of  the  sheriff  by  Saturday 
night"'  (meaning  thereby  that  the  plaintiff  was  in  insolvent  circumstances^ 
and  that  his  business  was  about  to  be  closed  by  his  creditors).  "He," 
(meaning  the  plaintiff)  "  is  trying  to  sell  out  his  stock  "  (meaning  the  stock 
of  goods  which  the  plaintiff  then  had  in  his  store,)  "to  avoid  paying  his" 
(meaning  the  plaintiff's)  "  debts."  "  He  "  (meaning  the  plaintiff)  "  is  a  ras- 
cal, and  cheat,  and  not  able  to  pay  his  "  (meaning  the  plaintiff's)  "  debts." 
By  means  of  the  committing  of  which  said  several  grievances  by  the  de- 
fendant, the  plaintiff  has  been  greatly  injured  in  his  said  good  name,  credit, 
reputation,  trade  and  business  :  And  one  G.  H. ,  then  one  of  the  creditors 
of  the  plaintiff,  thereupon,  by  reason  of  the  speaking  and  publishing  of  the 
said  false,  scandalous,  malicious  and  defamatory  words  by  the  defendant 

as  aforesaid,  then  and  there  sued  out  of  the court  of  the  said  county  a 

certain  writ  of  attachment,  against  the  goods  and  chattels  of  the  plaintiff, 
and  caused  the  stock  of  goods  and  merchandise  of  the  plaintiff  to  be  seized, 
and  the  same  then  and  there  were  seized,  by  virtue  of  the  said  writ,  to  sat- 
isfy the  debt  of  the  plaintiff  to  the  said  G.  H.;  and  thereby  the  store  of  the 
plaintiff  was  then  and  there  closed,  and  kept  closed  for  a  long  space  of  time, 
to  wit, days,  during  all  which  time  the  plaintiff  was  hindered  and  pre- 
vented from  carrying  on  his  said  ti-ade  and  business;  and  he  was  thereby 
also  compelled  to  and  did  then  and  thei'e  pay  out  divers  sums  of  money, 

amounting  to dollars,  in  and  about  the  said  attachment  suit,  and  for 

costs  in  that  behalf,  and  in  obtaining  the  release  of  his  said  goods  and  mer- 
chandise from  the  attachment  aforesaid;  and  divers  persons  who  had,  be- 
fore the  speaking  of  the  said  false,  scandalous,  malicious  and  defamatory 
words  by  the  defendant  as  aforesaid,  been  accustomed  to  deal,  and  divers 
other  persons  who  would  otherwise  have  dealt,  with  the  plaintiff  in  his  said 
trade  and  business,  have  since  that  time,  and  wholly  on  that  account,  re- 
spectively refused  to  do  so;  and  particularly  one  E.  F,,  by  reason  of  the 
speaking  and  publishing  of  the  said  false,  scandalous,  malicious  and  defam- 
atory words  by  the  defendant  as  aforesaid,  then  refused,  and  thence  hith- 
erto has  refused  to  have  any  dealings  or  transactions  with  the  plaintiff  in 
his  said  trade  and  business,  as  he,  the  said  E.  F.,  otherwise  might  and 
would  have  had;  and  by  means  of  the  several  premises  the  plaintiff  has 
there  lost  and  been  deprived  of  divers  great  gains  and  profits  which  other- 
wise would  have  accrued  to  him  in  his  said  trade  and  business,  and  has 
been  and  is  otherwise  injured:  {here  add  any  other  cause  of  special  damage 

that  may  accord  with  tJie  facts) :    To  the  damage  of  the  plaintiff  of  

dollars,  and  therefore  he  brings  his  suit,  etc. 

No.  S58.    For  libel  in  a  newspaper. 

{Commence  as  in  No.  335,  ante.)    For  that  whereas  the  plaintiff,  before 
and  at  the  time  of  the  committing  by  the  defendant  of  the  several  griev- 


696  CASE. 

ances  hereinafter  mentioned,  was  a  person  of  good  name,  credit  and  repu- 
tation, and  deservedly  enjoyed  the  esteem  and  good  opinion  of  his  neigh- 
bors and  other  worthy  citizens  of  tliis  state :  Yet  the  defendant,  well 
knowing  the  premises,  but  wickedly  and  maliciously  intending  to  injure 
the  plaintiff,  and  to  bring  him  into  public  scandal  and  disgrace,  on,  etc.,  in, 
etc.,  wickedly  and  maliciously  did  compose  and  publish,  and  cause  to  be 
composed  and  published,  of  and  concerning  the  plaintiff,  in  a  certain  news- 
paper called  the ,  whereof  the  defendant  was  then  and  there  the  editor 

and  proprietor,  a  certain  false,  scandalous,  malicious  and  defamatory  libel, 
containing  (among  other  things)  the  false,  scandalous,  malicious,  defama- 
tory and  libelous  matters  following,  of  and  concerning  the  plaintiff,  that  is 
to  say:  "  He,  (meaning  the  plaintiff)  etc.  {setting  out  the  libelous  matter  in 
hgec  verba,  with  proper  innuendoes,  as  in  the  next  form.) 

Second  count. — And  the  defendant,  further  contriving  and  intending  as 
aforesaid,  afterwards,  to  wit,  on,  etc.,  aforesaid,  in,  etc.,  aforesaid,  falsely, 
wickedly  and  maliciously  did  compose  and  publish,  and  cause  to  be  com- 
posed and  published,  of  and  concerning  the  plaintiff,  in  the  said  newspaper 

called  the ,  whoreof  the  defendant  was  then-and  there  the  editor  and 

proprietor,  a  certain  otlier  false,  scandalous,  malicious  and  defamatory 
libel,  containing  (among  other  things)  the  false,  scandalous,  malicious,  de- 
famatory and  libelous  matters  following,  of  and  concerning  the  plaintiff, 
that  is  to  say,  etc.  {Here  set  out  the  libelous  matter,  with  proper  innuendoes, 
as  in  next  form. 

By  means  of  the  committing  of  which  said  several  grievances  by  the  de- 
fendant, the  plaintiff  has  been  and  is  greatly  injured  in  his  said  good  name, 
credit  and  reputation,  and  brought  into  public  scandal  and  disgrace,  and 
has  been  and  is  shunned  and  avoided  by  divers  persons,  and  has  been  and 

is  otherwise  injured.    To  the  damage  of  the  plaintiff  of dollars,  and 

therefore  he  brings  his  suit,  etc. 

No.  359.    For  libel  by  letter,  imputing  insolvency;  claiming  special  dam- 
ages, etc. 

{Commence  as  in  No.  335,  ante.)  For  that  whereas  the  plaintiff,  before 
and  at  the  time  of  the  committing  by  the  defendant  of  the  several 
grievances  hereinafter  mentioned,  exercised  and  carried  on,  and  still 
does  exercise  and  carry  on,  the  business  of  a  merchant,  in,  etc.,  and  has 
always  conducted  the  same  with  punctuality  in  dealing,  keeping  his  en- 
gagements, and  paying  his  debts,  and  was  deservedly  held  in  great  credit 
and  esteem  by  his  neighbors  and  those  with  whom  he  had  dealings  in 
his  trade  and  business  as  such  merchant,  whereby  he  daily  acquired  divers 
gains  and  emoluments  in  his  said  trade  and  business,  to  the  support  and 
maintenance  of  himself  and  his  family,  and  the  great  increase  of  his  for- 
tune: Yet  the  defendant,  well  knowing  the  premises,  but  wickedly  and 
maliciously  intending  to  injure  and  destroy  the  good  name,  reputation  and 
credit  of  the  plaintiff  in  his  said  trade  and  business,  and  to  cause  him  to 
be  regarded  as  a  person  of  no  credit,  worth,  or  substance,  and  in  insolvent 
circumstances,  and  to  prejudice  and  injure  the  plaintiff  with  one  E.  F. .  a 
trader  and  merchant  doing  business  at ,  who  for  a  long  time  before 


CASE.  697 

then  had  dealt,  and  was  then  dealing,  with  the  plaintiff  in  the  way  of  his 
said  trade  and  business,  and  to  induce  the  said  E.  F.  to  leave  off  dealing  with 
the  plaintiff,  on,  etc.,  in,  etc.,  did  wrongfully,  falsely  and  maliciously  write 
and  publish  a  certain  false,  scandalous,  malicious  and  defamatory  libel,  of 
and  concerning  the  plaintiff,  and  of  and  concerning  his  said  trade  and  busi- 
ness, circumstances  and  credit,  in  the  form  of  a  letter  addressed  to  the  said 
E.  F.,  containing  the  false,  scandalous,  malicious,  defamatory  and  libelous 
matters  following,  that  is  to  say:  "  Sir,  you  (meaning  the  said  E.  F.)  will 
be  surprised  to  see  a  stranger  write  to  you,  (meaning  the  said  E.  F.,)  but  as 
I  (meaning  the  defendant)  have  no  other  view  but  doing  as  I  (meaning  the 
defendant)  would  be  done  by,  therefore  as  I  (meaning  the  defendant)  be- 
lieve you  (meaning  the  said  E.  F.)  are  a  fair  trader,  therefore  can  not  see  you 
(meaning  the  said  E.  F.)  wronged  without  letting  you  (meaning  the  said  E, 
F.)  know  it,  for  I  (meaning  the  defendant)  am  told  you  (meaning  the 
said  E.  F.)  have  large  dealings  with  one  A.  B.,  (meaning  tlie  plaintiff,)  and 
he  (meaning  the  plaintiff)  was  a  banknipt  some  years  before,  (meaning 
before  the  writing  and  publishing  of  the  said  libel,)  and  never  could 
get  his  (meaning  the  plaintiff's)  certificate;  so  all  that  he  (meaning  the 
plaintiff)  has  or  deals  for  is  his  (meaning  the  plaintiff's)  former  credit- 
ors' rights,  and  he  (meaning  the  plaintiff)  has  not  been  in  business  above 
three  quarters  of  a  year,  and  now  is  joined  witli  his  (meaning  the  plaint- 
iff's) brother,  (meaning  one  O.  D.,)  and  they  (meaning  the  plaintiff  and  the 
said  O.  D.)  get  all  the  credit  they  (meaning  the  plaintiff  and  O.  D. )  can  by  one 
(meaning  one  of  the  two  last-mentioned  persons)  recommending  another, 
(meaning  one  of  the  two  last-mentioned  persons,)  and  they  (meaning  the 
plaintiff  and  the  said  O.  D.)  are  arrested  every  day,  etc.,  to  bail  one  another 
and  pay  nobody,  so  now  I  (meaning  the  defendant)  have  done  my  (mean- 
ing his,  the  defendant's)  part,  and  if  you  (meaning  the  said  E.  F.)  are  not 
the  man  it  (meaning  the  said  letter  or  libel)  was  designed  for,  pray  burn  it 
(meaning  the  said  letter  or  libel);  and  if  you  (meaning  the  said  E.  F.)  take 
hint,  burn  it,  (meaning  the  said  letter  or  libel,)  for  the  writer  (meaning  the 
defendant)  is  neither  to  get  nor  lose  by  it,  so  farewell."  And  the  defendant 
tlien  and  there  falsely  and  maliciously  sent  the  said  letter,  containing  the 
false,  scandalous,  malicious,  defamatory  and  libelous  matters  aforesaid,  by 
mail  to  the  said  E.  F.,  and  the  same  was  then  received  and  read  by  the  said 
E.  F.,  as  thereby  published  by  the  defendant  to  the  said  E.  F.  By  means 
of  the  committing  of  which  said  several  grievances  by  the  defendant,  the 
plaintiff  has  been  and  is  greatly  injured  in  his  said  good  name,  reputation, 
credit,  trade  and  business,  and  has  fallen  into  great  discredit  among  his 
creditors,  and  other  worthy  persons  witli  whom  he  had  dealt  and  traded  in 
his  said  trade  and  business,  and  of  whom  he  was  accustomed  to  buy  goods 
and  merchandise  on  credit,  and  especially  the  said  E.  F.;  insomuch  that 
those  creditors,  and  other  persons,  and  especially  the  said  E.  F.,  wholly  on 
account  of  the  writing  and  publishing  of  the  said  false,  scandalous,  mali- 
cious and  defamatory  libel  by  the  defendant  as  aforesaid,  have  altogether 
refused,  and  still  refuse,  to  buy  of,  or  sell  to,  or  have  anything  to  do  with, 
the  plaintiff  in  his  trade  and  business  aforesaid;  (here  may  be  added  any 
other  causes  of  special  damage  that  tlie  facts  may  justify;)  and  also  by 


698  CASE. 

means  of  the  premises  the  plaintiff  has  been  and  is  otherwise  injured:    To 

the  damage  of  the  plaintiff  of  dollars,  and  tlierefore  he  brings  his 

suit,  etc. 

A  publication,  to  be  a  libel,  must  tend  to  injure  the  plaint- 
iff's reputation,  or  expose  him  to  public  hatred,  contempt  or 
ridicule,'  but  it  need  not  charge  a  crime.''  It  is  defined  by  the 
statute  of  Illinois  to  be  a  malicious  defamation,  expressed 
either  by  printing,  or  by  signs  or  pictures,  or  the  like,  tending 
to  blacken  the  memory  of  one  who  is  dead,  or  to  impeach  the 
honesty,. integrity,  virtue  or  reputation,  or  publish  the  natural 
defects,  of  one  who  is  alive,  and  thereby  to  expose  him  or  her 
to  public  hatred,  contempt  or  ridicule.^ 

An  action  for  libel  may  be  sustained  for  words  published 
which  tend  to  bring  the  plaintiff  into  public  hatred,  contempt 
or  ridicule,  even  though  the  same  words  spoken  would  not 
have  been  actionable," 

Where  a  member  of  a  school  district  wrote  a  letter  to  a 
school  committee,  accusing  a  teacher  of  a  want  of  chastity,  and 
remonstrating  against  her  appointment,  it  was  held  that  the 
communication  was  libelous,  if  shown  to  have  been  made  with 
malice,  or  without  probable  cause,^ 

The  better  and  prevailing  opinion  is  that  no  action  for  libel 
can  be  maintained  for  defamatory  matter  contained  in  a  plead- 
ing in  a  court  of  civil  jurisdiction.' 

A  corporation  is  not  liable  for  a  libel  written  by  an  agent 
without  its  express  authority,  although  such  libelous  writing 
relates  to  the  business  of  the  company/ 

DEFENSES  TO  THE  ACTION. 

For  pleas  in  abatement,  and  observations  on  the  principles 
governing  the  same,  see  Defenses  to  an  Action,  ante^  page  32. 

*  Armen  v.  Moranda,  8  Blackf.  426;  seq,;  Cerveny  v.  Daily  News,  139  111. 
OosUng  v.    Morgan,   32  Penn.    St.      345. 

273.  *  Bodwell  v.  Osgood,  3  Pick.  379. 

^Johnson  v.  Stebbins,  5  Ind.  364.  «Townshend  Sland.  and  Lib.  381; 

^  Starr  &  Curtis'  Stat.    804;  Rev.  McLaughlin  v.    Cowley,    127    Mass. 

Stat.  (1893),  500;   Rev.  Stat.  (1895),  316;  Ash  v.  Zweitusch,  57  111.  Apjx 

543;  see  Clay  v.  People,  86  111.  147.  157. 

*  Newell  on  Def.  and  Sland.  78  et  ">  Ex.  Co.  v.  Fitzner,  59  Miss.  581; 


CASE.  699 

Pleas  in  bar. — In  an  action  on  the  case,  the  plea  of  not 
guilty  is  the  general  issue. 

No.  360.     Plea  of  not  guilty. 

In  the Court. 

Term,  18—. 

C.  D. ) 

ats.  y  Case. 
A.  B.  )  And  the  defendant,  by  E.  F. ,  his  attorney,  comes  and  defends 
the  wrong  and  injury,  when,  etc.,  and  says  that  he  is  not  guilty  of  the  said 
supposed  grievances  above  laid  to  his  charge,  or  any  or  either  of  them,  in 
manner  and  form  as  the  plaintiff  has  above  thereof  complained  against 
him  :    And  of  this  the  defendant  puts  himself  upon  the  country,  etc. 

The  plea  of  not  guilty,  in  an  action  on  the  case,  puts  in  issue 
the  wrongful  act,  and  it  is  very  seldom  necessary  to  plead  any 
other  plea.  The  gist  of  the  action  is  the  tort,  and  this  is  put 
in  issue  by  this  plea.  It  compels  the  plaintiff  to  prove  everv 
essential  allegation  in  his  declaration  that  goes  to  make  up 
the  liability  of  the  defendant.  The  facts  stated  in  the  induce- 
ment, however,  are  not  put  in  issue  by  it.'  Thus  where  the 
action  is  for  negligent  driving,  and  the  defendant's  possession 
of  the  carriage  alleged  to  have  been  negligently  driven  is 
stated  in  the  declaration  by  way  of  inducement,  such  posses- 
sion is  admitted  by  the  plea." 

In  an  action  under  the  statute  of  Illinois,  for  causing  the 
death  of  a  person  by  negligence,  the  plea  of  not  guilty  puts  in 
issue  the  allegation  of  there  being  a  widow  or  next  of  kin  sur- 
viving, as  well  as  the  commission  of  the  act  complained  of.^ 

Special  pleas  generally. — As  an  action  on  the  case  is 
founded  upon  the  mere  justice  and  conscience  of  the  plaintiff's 
case,  and  is  in  the  nature  of  a  bill  in  equity,  and  is  in  effect 
so,  the  defendant  may,  under  the  general  issue,  introduce  in 
evidence  any  matters  which  show  that  the  cause  of  action  has 
been  discharged,  or  that  in  equity  and  good  conscience  the 

WoodlingY.  Knickerbocker,  31  Minn.  '  Allen  v.  Michel,  38  III.  App.  818; 

268;  Harding  v.  Greening,  8  Taunt  2  Greenl,  Ev.,  Sec.  231. 

42;  Ins.  Co.   v.   Paid,   37  111.   App.  ^2  Steph.  N.  P.  1025. 

439.  8  Conant  v.  Griffin,  48  111.  410. 


700  CASE. 

plaintiff  ought  not  to  recover.'  Thus  a  release,  former  recov- 
ery, or  satisfaction  need  not  be  pleaded.^ 

But  to  this  general  rule  there  are  some  exceptions,  such  as 
the  statute  of  limitations,  and  justification  in  an  action  for 
slander,  alleging  the  truth  of  the  vverds,  which  must  be 
specially  pleaded.' 

The  defendant  may,  however,  plead  specially  anything 
which,  admitting  that  the  plaintiff  once  had  a  cause  of  action, 
goes  to  discharge  it;  such  as  a  release,  accord  and  satisfaction, 
discharge  in  bankruptcy,  former  recovery,  etc.* 

(jeneral  issue  in  actions  for  slander. — In  an  action  for 
oral  or  written  slander,  the  plea  of  not  guilty  operates  as  a 
denial  of  the  extrinsic  facts  stated  in  the  inducement;  the 
speaking  of  the  words,  or  publication  of  the  libel;  the  truth 
of  the  colloquium,  or  the  application  of  the  words  to  the 
plaintiff,  and  to  the  extrinsic  facts  stated  in  the  declaration; 
and  the  damage,  when  special  damage  is  necessary  to  maintain 
the  action.  And  when  the  defense  is,  that  the  libel  or  words 
were  published  or  spoken,  not  in  the  malicious  sense  imputed 
by  the  declaration,  but  in  an  innocent  sense,  or  upon  a  justi- 
fiable occasion,  this  matter  may  be  given  in  evidence  under  the 
geiieral  issue.^  The  defendant  can  not  prove  under  the  gen- 
eral issue  the  truth  of  the  words,  either  in  bar  of  the  action, 
or  in  mitigation  of  damages." 

»lChit.  PL  483;   Greenl.  on  Ev.,  Scott  v.  Fleming,  17  Bradw.  561; 

Sec.   231;    Kennedy    v.   Strong,    10  Lafanettev.3IcC<irthy,18Bra(l\v.8'7; 

Johns.  291;  see  Miller  v.  Manice,  6  And.Steph.Pl.  125  n. :  Townshendon 

Hill  114.  Slan.  &  Lib.,  Sec.  350;  2  Greenl.  Ev., 

2  And.  Steph.  PI.  238-239;  2  Bing.  Sec.  421;  Darling  v.  Bimks,  14  111. 
377;  2  Greenl.  on  Ev.,  Sec.  231.  46;  Tottleben  v.  Blankenship,  58  111. 

3  1  Chit.  PI.  434,  436;  2  Greenl.  on  App.  47. 

Ev.,  233.  ^2  Greenl.    Ev.,  Sec.    424;  Heard 

'^ Hurst  v.    Cook.  19  Wend,   463;  on  Slan.    &  Lib.,  Sec.  239;  Towns- 

Miller  v.  Manice,  6  Hill  114;  see  1  hend  on   Sland.   &  Lib.,  Sec.    211, 

Chit.  PI.  432-435.  and  cases  there  cited;  Sheahan  v. 


*  Frank  v.  Kaminsky,  109  111.  26 
Koch  v.  Heideman,  16  Bradw.  478 
Welker  v.  Butler,  15  Bradw.  209 
Tunnell  v.  Ferguson,  17  Bz-adw.  76 


Collins,  20  111.  325;  Taijlor  v.  Rob- 
inson, 29  Me.  323;  Haivs  v.  Stan- 
ford, 4  Sneed  (Tenn.)  520;  Sidgr eaves 
V.  Myatt,  22  Ala.  617. 


CASE.  YOl 

Proof  of  the  general  bad  character  of  the  phiintiff  is 
admissible  in  order  to  reduce  the  damages; '  but  witnesses 
shoukl  not  be  allowed  to  give  in  detail  all  the  reports  in  circu- 
lation derogatory  to  the  plaintiff's  character,  as  it  would  lead 
to  endless  investigation,  and  burden  the  case  with  immaterial 
circumstances,  without  any  beneficial  results.^ 

It  may  also  be  shown,  in  mitigation  of  damages,  that  the 
words  were  spoken  in  the  heat  of  passion;^  but  anger  is  not  a 
justification  of  the  use  of  slanderous  words,  or  even  a  mitiga- 
tion of  the  offense,  unless  provoked  by  the  person  against 
whom  such  words  are  used.*  And  it  may  be  proved  that  the 
defendant  was  insane  at  the  time  he  spoke  the  words/ 

The  defendant  is  allowed  to  prove  that  at  the  time  and 
place  of  uttering  the  words  he  offered  an  explanation  of 
them/ 

It  is  not  admissible,  under  the  general  issue,  to  prove  in 
mitigation  of  damages  that  there  were  rumors  in  the  plaintiff's 
neighborhood  that  he  had  been  guilty  of  the  offense  charged/ 

In  short,  the  defendant,  where  he  does  not  justify,  can  miti- 
gate damages  in  two  ways  only  :  first,  by  showing  the  general 

'  Young  v.   Bennett,  4  Scam.  43;  79  111.  58;  see  Sheffill  v.  Van  Deiisen, 

Adams  v.  Smith,  58  111.  417 ;  2  Greenl.  15  Gray,  485. 

Ev.,  Sec.  424;  Paddock  v.  Salisbury,  *  Freeman  v.  Tinsley,  50  111.  497;  see 

2  Cow.    811;    Ross  v.  Lapham,    14  Hosley  v.  Brooks,  20  JW.  115:  Brown 

Mass.    275;  2   Stark.   Ev.   216,   470;  y.  Burnett,  10  Bradw.  279;  Storey  v. 

Begnier  v.  Cabot,  2  Gilm.  34;  Shea-  Early,  86  III.  461. 

han  v.  Collins,  20  111.  325;  Burke  v.  ^  Yeates  v.  Reed,  4  Blackf.  463;  see 

Miller,  6  Blackf.  155;  Moyer  v.  Pine,  Young  v.  Richardson,  4  Bradw.  364; 

4  Mich.  409;  Fletcher  v.  Burrows,  Gaidt    x:  Babbitt,    1    Bradw.    130; 

10  Iowa  557;    Mahoney  v.  Belford,  Hay  v.  Mather,  15  Bradw.  30. 

132  Mass.  393.     But  see  1  Chit.  PI.  ^  Winchell  v.  Strong,  17   111.  597; 

493;  11  Price,  235.  Hagan  v.  Hendry,  18   Md.  177;  see 

^Sheahan  v.  Collins,  20  111.  325;  Hatch  y.  Potter,  2  Gilm.  725;  Owen 

Steinman  v.  3IcWilliams,   6  Burr.  v.  J/ciiTean,  14  111.  459. 

170;  Parkhurst  v.  Ketchum,  6  Allen  ''  Young  v.  Bennett,  4  Scam.  43; 

(Mass.)  406;  Townshend on  Slan.  and  Owen  v.  McKean,  14  111.  459;  Lehn- 

Lib.,  Sec.  407.  ing  v.  Hewett,  45  111.  23;  Bodwell  v. 

^  Brown  v.   Brooks,  3  Ind.    518;  ■  Swan,  3  Pick.  376;  Lamed  \.  Buf- 

Iseleyv.  Lovejoy,  8  Blackf.  462;  Gates  finton,  3  Mass.  546;  Walcott  v.  Hall, 

V.  Meredith,   7  Ind.   440;  Dailey  v.  6  Mass.  514;    Treat  v.  Broirning,  4 

Reynolds,  4  Iowa  354;    Lamed  v.  Conn.   408;    Weed    v.   Bibbins,    32 

Buffinton,  3  Mass.  546;    TJiomas  v.  Barb.  (N.  Y.)  315. 
Fisher,  71  111.  576;  Miller j.  Johnson, 


702  CASE. 

bad  character  of  the  plaintiff;  second,  by  showing  any  circum- 
stances which  tend  to  disprove  malice,  but  do  not  tend  to 
prove  the  truth  of  the  charge.' 

Special  pleas  in  actions  for  slander. — As  we  have  just 
seen,  a  defendant  can  not,  under  the  general  issue,  in  an  action 
for  libel  or  slander,  give  in  evidence  the  truth  of  the  matter 
or  any  part  of  it,  even  in  mitigation  of  damages,  but  he  must 
justify  specially,*  or  give  notice  of  matter  in  justification  with 
the  general  issue.^ 

In  framing  a  plea  of  justification,  care  must  be  taken  to  ob- 
serve the  following  rules :  first,  it  is  necessary,  although  the 
libel  contains  a  general  imputation  upon  the  plaintiff's  char- 
acter, that  the  plea  should  state  specific  facts ^  showing  in  what 
particular  instances  and  in  what  manner,  he  has  misconducted 
himself;  second,  the  matter  set  up  by  way  of  justification 
should  be  strictly  conformable  with  the  slander  laid  in  the  dec- 
laration, and  must  be  proved  as  laid,  at  least  in  substance;  and 
third,  if  the  matter  of  justification  can  be  extended  to  the 
whole  of  the  libel  or  slander,  the  plea  should  not  be  confined 
to  part  only,  leaving  the  rest  unjustified.* 

It  is  no  objection  to  a  plea,  however,  that  it  does  not  justify 
the  speaking  of  all  the  words;  if  the  charge  is  divisible,  a  justi- 
fication of  part  will  be  good  pro  tantoi"  But  in  such  case  the 
plea,  in  the  introductory  part,  must  not  profess  to  answer  the 

'Regnier    v.   Cahot,  2  Gilm.    34;  251;  Brickett  v.  Davds,  21  Tick.  404; 

Young  Y.  Bennett,  4  Scam.  43;  Weth-  Mitchell  \.   Borden,    8   Wend.    570; 

erbeev.  Marsh,  20  N.  H.  561;  Fid-  Bissellv.  Cornell,  24  Wend.  354; 

ler  V.  Dean,  31  Ala.  654;  see  1  Chit.  *  1  Chit.  Pl.(ll  Am.  Ed.)  494;  Cro. 

PI.  433,  434.  Jac.  676,  578;  Cro.  Eliz.  623;  Bell  v. 

2 1  Chit.  PI.  494;  Shepard  v.  Mer-  Byrne,    13    East    544;     Weaver    v. 

Hll,     13    Johns.    475;     Henson    v.  Lloyd,   2  B.  &  C.  678;  4  D.  &   R. 

Veatch,lB\acU.S&9;Haivs V.Stan-  230;    S.    C,  1  Starkie  on     Slander, 

ford,  4  Sneed  520;   Hagan  v.  Hen-  (2  Ed.)  480;  Kent  v.  David,  3  Blackf . 

dry,  18  Md.  177;    Cracraft  v.  Coch-  298:   Heard  on    Lib.    &  Slan.,  Sec. 

ran,  17  Iowa  301;   Townshend    on  240;  Sharpe  v,  Stephenson.  12  lied. 

Slan.    and  Libel,  Sec.  409;  Scott  v.  348;  Sterling \.  Shenvood,  20^ oh.ns. 

McKinnish,   15  Ala.   662;  Teagle  v.  204;  Gault  v.  Babbitt,  1  Brad.  (111.) 

Deboy,  8  Blackf.  134;  Heai-d  on  Lib.  130. 

and  Slan.,  Sec.  239.  5  6Bing.  587;    see  1  Stark.  Slan. 

^Darling    v.    Banks,    14   111.   46;  (2  Ed.) 484. 
Townshend  on  Slan.  and  Lib.,  Sec. 


CASE.  703 

whole  of  the  declaration  or  count,  but  only  such  part  or  parts 
as  it  really  does  answer.' 

To  support  a  special  plea  in  justification,  where  crime  is  im- 
puted, the  same  evidence  must  be  adduced  as  would  be  neces- 
sary to  convict  the  plaintiff  upon  an  indictment  for  the  crime 
charged; '  and  it  is  conceived  that  he  would  be  entitled  to  the 
benefit  of  any  reasonable  doubt  of  his  guilt  in  the  minds  of 
the  jury,  in  the  same  manner  as  in  a  criminal  trial.  If  the 
evidence  falls  short  of  proving  the  commission  of  the  crime, 
the  jury  may  still  consider  the  circumstances,  as  tending  to 
show  that  the  defendant  had  probable  cause  to  believe  the 
charge  to  be  true,  and  to  lessen  the  character  of  the  plaintiff, 
and  therefore  to  reduce  the  amount  of  the  damaores.^ 

The  statute  provides  that  "  it  shall  be  competent  for  the 
defendant  to  establish  the  truth  of  the  matter  charged  by  a 
preponderance  of  the  testimony."  * 

No.  361.    Plea  justifying  u'ords  impiiting  perjury. 

(First  plea  not  guilty— No.  360,  ante.)  And  for  a  further  plea  in  this  be- 
half, the  defendant  says  that  the  plaintiff  ought  not  to  have  his  aforesaid 
action  against  him,  the  defendant,  because  he  saj's,  that  before  the  com- 
mitting of  the  said  supposed  grievances  in  the  said  declaration  mentioned, 
to  wit,  on,  etc.,  in,  etc.,  at  a  term  of  the court,  of  the  said  county,  be- 
gun and  held  at ,  within  and  for  the  said  county,  on.  etc.,  before  the 

Honorable  E.  F.,  then  being  judge  of  the  same  court,  a  certain  issue  duly 
joined  in  the  said  court,  between  one  G.  H.  and  one  L.  M.,  in  a  certain  plea 
of  trespass,  came  on  to  be  tried  in  due  form  of  law,  and  was  then  and 
there  tried  by  a  certain  jury  of  the  country,  duly  summoned,  impaneled 
and  sworn  between  the  parties  aforesaid;  and  that  upon  the  said  trial  the 
plaintiff  appeared  as  a  witness  on  the  part  of  the  said  L,  M.,  and  was  duly 

n  Chit.  PI.  (11  Am.  Ed.)  497.  ^2  Greenl.  Ev.,  Sec.  426;  2  Stark. 

''Hicks  V.  Rising,  24  111.  566;  Bu-  on   Slan.  83-94,  and  notes  by  Wen- 

ford  Y.  Wible,  32  Penn.  95;  Harbi-  dell;  see  also  7  Law   Reporter  533- 

son  V.  Shook,  41  111.  141;  Darling  v.  4  Esp.  248;  2  C.  &  P.  570;  1  M.  &  M. 

Banks,  14  111.  46;  Crandall  v.  Daw-  46;    Crandall  v.  Dawson,  1    Gilm. 

son,  1   Gilm.  556;  Crotty  v.  Mori-is-  656;    Corbley  v,  Wilsoji,  71   111.  209. 

sey,  40  111.  477;  Landis  v.  Shanklin,  *2  Starr  &  Curtis'  An.  Stat.  2286; 

1  Carter  (Ind.)  92;  Gants  v.  Vinard,  Rev.  Stat.  (1895)   1450:    Rev.    Stat. 

1  Carter  (Ind.)  476;  Shoulty  v.  3Iiller,  (1893)  1353;  Hawver  v.    Haivver,  78 

1  Carter    (Ind.)  544;    Stein  v.    3/c-  111.   412;    Tunnell  v.    Ferguson,    17 

Williams,   6  Barr.    170;    Woodbeck  Bradw.    76;     Scott   v.   Fleming,    17 

V.    Keller,    6  Cow.  118;    Newell    on  Bradw.   561. 
Def.  and  Slan.  651. 


70i  .  CASE.  y 

sworn,  and  took  his  oath  before  the  said  court,  to  speak  the  truth,  the 
whole  truth,  and  nothing  but  the  truth,  touching  the  matters  in  issue  on 
the  said  trial ;  and  that  at  and  upon  the  said  trial,  certain  questions  became 
and  were  material,  in  substance  as  follows,  that  is  to  say  (here  state  the 
material  questions);  and  that  the  plaintiff,  being  so  sworn  as  aforesaid, 
and  being  then  and  there  lawfully  required  to  depose  the  truth  in  a  pro- 
ceeding in  a  court  of  justice,  at  and  upon  the  said  trial,  in  the  court  afore- 
said, then  and  there  falsely,  willfully,  voluntarily  and  corruptly  did  say, 
depose  and  swear,  among  other  things,  in  substance  and  to  the  effect  fol- 
lowmg,  that  is  to  say,  {here  state  the  evidence,  as  fully  as  the  words  in  the 
declaration);  whereas,  in  truth  and  in  fact  {here  negative  the  plaintiff' s  evi- 
dence, as  in  an  indictment  for  perjury)'.  And  the  plaintiff  did  thereby  in 
the  said  court,  so  held  as  aforesaid,  upon  his  said  oath  upon  the  trial  as 
aforesaid,  in  matter  and  form  as  aforesaid,  commit  willful  and  corrupt 
perjury;  wherefore  the  defendant,  at  the  time  mentioned  in  the  said  decla- 
ration, in,  etc.,  spoke  and  published  of  and  concerning  the  plaintiff  the  said 
several  words  in  the  said  declaration  mentioned,  as  it  was  lawful  for  him 
to  do  for  the  cause  aforesaid.  And  this  the  defendant  is  ready  to  verify; 
wherefore  he  prays  judgment  if  the  plaintiff  ought  to  have  his  aforesaid 
action  agamst  him,  etc' 

It  is  said  that  the  plea  of  justification  must  be  direct  and 
explicit.  It  must  in  every  respect  correspond  with,  and  be  as 
extensive  as,  the  charge  in  the  declaration.  "  It  must  be  as 
broad  as  that  charge  is;  if  it  go  beside  it,  or  fall  short  of  it,  it 
is  naught;  it  must  be,  in  point  of  law,  identical  with  it."  ^ 

No.  362.    General  replication,  de  injuria. 

In  the Court. 

Term,  18—. 

A.  B.  ) 

vs.     V  Case. 

CD.)  And  the  plaintiff,  as  to  the  plea  of  the  defendant  by  him 
secondly  above  pleaded,  says  that  he,  the  plaintiff,  by  reason  of  anything 
in  that  plea  alleged,  ought  not  to  be  barred  from  having  his  aforesaid  ac- 
tion, because  he  says,  that  the  defendant,  at  the  said  time  when,  etc. ,  in 
the  said  declaration  mentioned,  of  his  own  wrong,  and  without  the  cause 
by  him  in  that  plea  mentioned,  did  commit  the  said  several  grievances  in 
the  said  plea  mentioned,  in  manner  and  form  as  the  plaintiff  has  in  his  said 
declaration  above  thereof  complained  against  him,  the  defendant:  And 
this  the  plaintiff  prays  may  be  inquired  of  by  the  country,  etc. 

The  general  replication,  de  injuria,  is  the  proper  replication 
to  a  plea  of  justification,  in  actions  for  oral  and  written  slander.^ 

'  Wharton's  Prec.  of  Indict,  and  10  B.  &  C.  263;  10  Bing.  519;  Heard 
Pleas,  294;  3  Chit.  PI.  1033.  on  Lib.  and  Slander,  Sec.  242. 

^Jenkins   v.  Cocker,  1  Ired.   309;  n  Chit.  PI.  590;  Allen  \.  Crofoot, 


CASE.  705 

No.  363.    Plea  justifying  tcords  imputing  larceny. 

{First  plea  not  guilty— No.  360,  ante.)  And  for  a  further  plea  in  this 
behalf,  the  defendant  says  that  the  plaintiff  ought  not  to  have  his  aforesaid 
action  against  him,  the  defendant,  because  he  says,  that  the  plaintiff,  be- 
fore the  committing  of  the  said  supposed  grievances  in  the  said  declaration 

mentioned,  to  wit,  on,  etc.,  in,  etc.,  one  horse,  of  the  value  of  dollars, 

of  the  goods  and  chattels  of  one  E.  F.,  then  and  there  being  found,  feloni- 
ously did  steal,  take,  lead  and  drive  away,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace  and  dignity 
of  the  people  of  the  said  State  of  Illinois:  Wherefore  the  defendant,  at  the 
time  mentioned  in  the  said  declaration,  there  spoke  and  published,  of  and 
concerning  the  plaintiff,  the  said  several  words  in  the  said  declaration  men- 
tioned, as  it  was  lawful  for  him  to  do,  for  the  cause  aforesaid.  And  this 
the  defendant  is  ready  to  verify;  wherefore  he  prays  judgment  if  the 
plaintiff  ought  to  have  his  aforesaid  action  against  him,  etc. ' 

Reply  de  injuria,  as  in  No.  362,  ante. 

Other  forms  of  pleas  of  justification  can  readily  be  framed 
from  the  above  precedent,  by  setting  out  the  matter  of  the 
plea  as  in  an  indictment  for  the  offense  charged. 

For  demurrers,  see  "  Defenses  to  an  Action  "  and  for  pleas  of 
statute  of  limitations,  release,  former  recovery,  accord  and 
satisfaction,  etc.,  see  titles  of  those  pleas  in  Assumpsit. 

7  Cow.  45;  Craft  v.  Boite,  1  Saund.  see  7  Price,  670;  Allen  v.  Scott,  13 
241c;   Heard  on  Lib.   and  Sland.,      111.80. 

Sec.  252;  Newell  on  Def.,  S.  &  L.  665;  '  Whart.  Prec.  of  Indict.  &  Pleas, 

190;  Craft  v.  Boite,  1  Saund.  244  c. 
45 


CHAPTER  XXIII. 

AMENDMENTS. 

It  has  been  remarked  that  the  history  of  the  English  law  in 
recrard  to  amendments  would  illustrate  the  common  and  nat- 
ural  tendency  of  all  men,  at  all  times,  where  an  abuse  exists 
in  government,  morals,  or  conduct,  to  correct  the  abuse  a  little 
too  thoroughly.'  In  early  times  the  English  courts  permitted 
parties  to  amend  their  pleadings  as  well  after  as  before  judg- 
ment was  pronounced,  and  even  after  the  judgment  was  en- 
tered. If  any  mis-entry  had  been  made,  it  was  corrected  by 
the  minutes,  or  by  the  recollection  of  the  judges.  But  under 
this  practice  of  amending  records,  the  judges  altered  and  falsi- 
fied their  own  records  for  sinister  purposes,  by  making  erasures 
and  amendments  privately;  and  this  abuse  became  so  great  that 
in  the  reign  of  Edward  I.  very  heavy  punishments  were  in- 
flicted upon  almost  all  the  king's  justices.  The  succeeding 
judges,  bent  on  a  thorough  and  radical  reform  of  this  great 
abuse,  resolved  that  a  record  should  be  held  sacred,  and  should 
not  be  amended  at  all,  when  enrolled,  and  the  term  was  at  an 
end.  The  rule  having  been  thus  established,  their  successors 
found  themselves  tied  down  to  a  reform  by  which  manifest 
errors,  slips  of  the  pen  and  mis-spellings  occasioned  the  reversal 
of  meritorious  judgments,  and  such  palpable  injustice  was 
thereby  occasioned  that  the  British  Parliament  has,  from  time 
to  time  ever  since,  been  endeavoring  to  reform  the  reform,  and 
has  passed  a  great  many  statutes  for  that  purpose,' 

Amendments  generally. — Amendments  at  common  law, 
independently  of  any  statutory  provision  on  the  subject,  are 
in  all  cases  in  the  discretion  of  the  court,  for  the  furtherance 

1  2  Swan's  Pr.  843.  '  3  Bla.  Com.  407,  411;    2  Swan's 

PI.  843. 

(706) 


AMENDMENTS.  707 

of  justice/  They  may  be  made  while  the  proceedings  are  in 
paper,  that  is,  until  judgment  is  signed,  and  during  the  term 
in  which  it  is  signed;  for  until  the  end  of  the  term  the  proceed- 
ings are  considered  only  in  Jieri,  and  consequently  subject  to 
the  control  of  the  court; ^  and  even  after  judgment  is  sio-ned, 
and  up  to  the  latest  period  of  the  action,  amendment  is  in 
most  cases  allowable,  in  the  discretion  of  the  court,  under  stat- 
utes for  allowing  amendments  of  the  record;  and  in  later  times 
the  judges  have  been  much  more  liberal  than  formerly,  in  the 
exercise  of  this  discretion.'  Amendments  may  be  made  after 
the  term,*  although  formerly  the  rule  was  otherwise; '  and  even 
after  error  brought,  where  there  has  been  a  verdict  in  the 
cause.'  A  remittitur  davina  may  be  allowed  after  error; '  and 
this  although  error  has  been  brought  on  the  ground  of  the  ex- 
cess of  damages  remitted;  *  but  the  application  for  the  remitti- 
tur must  be  made  in  the  court  below.  So  by  agreement  of 
attorneys,  the  record  may  be  amended  after  error.*  Amend- 
ments are,  however,  always  limited  by  due  consideration  of  the 
rights  of  the  opposite  party;  and  when  by  the  amendment  he 
would  be  prejudiced,  or  exposed  to  unreasonable  delay,  it  is 
not  allowed.'" 

^1  Bouv.  L.  D.  98;  see  Martin  v.  v.  Sherman,  2  Scam.  539;  Michael- 

Russell,  3  Scam.  342;  McBain  v.  En-  tree  v.  Sparks,  1  Scam.  132;  Duncan 

loe,  13  111.  76;  Campbell  v.  Head,  13  v.  McAfee,  3  Scam.  93;  see  Campbell 

111.  122;  Stephens  v.  People,  13  111.  v.  Head,  13  111.  122;  McCorndck  v. 

131;  Grain  v.  Bailey,  1  Scam.  321;  Wlieeler,  36  111.  114;    Wallahan  v. 

Harlan  v.  Scott,  2  Scam.  65;  Jack-  People,  40  111.  102;  Ass'n  v.  Rivar- 

son  V.  Warren,  32  111.  331;  Griffin  v.  dan,  61  111.  App.  457. 

City,  50  111.  422;  Bemis  v.  Homer,  ^Co.  Lit.  260,  a.;  3  Blac.  Com.  407. 

145  111.  567;  R.  R.  Co.  v.  Logue,  158  *  Bailey  v.   Musgrave,  2  S.  &  R. 

111.  621;  but  see  also  Sec.  61,  Practice  219;  Hawes  v.  Haices,  33  111.  287;  R. 

Act.  R.  Co.  V.  Butler,  53  111.  323. 

^SBlack'sCom.AOl;  Stall  \.  Web-  ''Furry    v.    Stone,    2    DaU.    184; 

ster,  11  111.  511;  Coughran  v.  Outch-  Furry  v.  Stone,  1  Yeates  186;  Stone 

ens,  18  111.  390;  Dunham  v.  Chicago,  v.  Furry,  Addis.  115. 

55  111.  358.  8  Bailey  v.   Musgrave,  2  S.  &  R. 

^ Nelson  V.  Barker,  S  McLean  379;  219;  Hunter  v.  Shei'man,  2  Scam. 

Steioart  v.  Bennett,  1  Branch  (Fla.)  539, 

437;  Pinkston  v.  Taliaferro,  9  Ala.  ^Johnson  v.  Chaffant,  1  Binn.  75; 

547;  Smith  v.  Vanderberg,  46  111.  34.  Baring    v.    Shippen,   2    Binn.    169; 

*aConner  v.  Midlen,   11  111.   57;  Hatces  v.  Peojyle,  129  III.  123. 

Stall  V.  Webster,  11  111.  511;  Hunter  "SeeBac.  Abr.,  Amend.,  2  Arch. 


703  AMENDMENTS. 

It  is  the  duty  of  courts  to  reasonably  exercise  their  power 
to  allow  amendments  of  the  pleadings.  It  is  the  policy  of  our 
statute  relating  to  amendments,  that  parties  shall  not  be  de- 
prived of  any  substantial  rights  tli rough  defects  or  omissions 
in  pleadings,  if  they  will  use  reasonable  diligence  to  avoid  the 
result  by  applying  to  the  court  for  leave  to  amend,  or  supply 
the  omission.' 

Aiiieiulments  before  judgment. — The  provisions  of  section 
23  of  the  Practice  Act  in  this  regard,  are  as  follows : 

"At  any  time  before  final  judgment  in  a  civil  suit,  amend- 
ments may  be  allowed  on  such  terms  as  are  just  and  reasona- 
ble, introducing  any  party  necessary  to  be  joined  as  plaintiff 
or  defendant,  discontinuing  as  to  any  joint  plaintiff  or  joint 
defendant,  changing  the  form  of  the  action,  and  in  any  mat- 
ter, either  of  form  or  substance,  in  any  process,  pleading  or 
proceeding  which  may  enable  the  plaintiff  to  sustain  the  action 
for  the  claim  for  which  it  was  intended  to  be  brought,  or  the 
defendant  to  make  a  legal  defense.^  The  adjudication  of  the 
court,  allowing  an  amendment,  shall  be  conclusive  evidence  of 
the  identity  of  the  action."  ' 

"In  case  another  defendant  is  added,  summons  may  issue 
ao-ainst  such  defendant,  returnable  to  the  next  term  of  the 
court,  and  he  may  be  proceeded  against  in  the  same  manner 
as  if  he  had  been  made  a  defendant  at  the  commencement  of 
the  suit." 


Prac.  230;  And.  Steph.  PL  168 
C&ughran  v.  Gutehen,  18  111.  390 
McCormick  v.  Wheeler.  36  111.  114 


108  111.  514;  Lockicood  v.  Doane,  107 
111.  235;  N.  B.  Ass'ii  v.  Jackson,  114 
111.    533;    Sullman  v.    Barrett,    18 


Koch  V.  Both,  150  111.  212.  Bradw.    573;     Toinlinson    v.   Eaim- 

1  i?emis  V.  isomer,  145  111.  567.  shaio,    112    111.    Z\\;  Carpenter    v. 

5  Kev.  Stat.  (1893)  1074;  Rev.  Stat.  Bank,    119    111.    353;    Schirmer  v. 

(1895)1158;  2   Starr  &  Curtis  1787;  Baecker,  20  Bradw.  SIS;  B.  B.  Co.  v. 

see  B.  B.  Co.  w .  Lickiss,  12  111.  521;  Gates,   120    111.   86;    Ace.  Ass'n  v. 

Cogshall  v.  Beesley,  76  111.  445;  Ins.  Tuggles,  138  111.   428;    B.  B.  Co.  v. 

Co.  V.  Mueller,  77  111.  22;   Schell  v.  Surwald,    147    111.   194;    Strean    v. 

Eiclman,  77  111.  301;  Thompson  v.  LZayd,  128  111.  493;  Flower  \ .  Brum- 

Somberger,  78  111.  353;  Ins.   Co.  v.  bach,    131    111.    646;    Pardridge    v. 

Foote,  79  111.  361;  Grisicold  v.  Shaw,  Ryan,  134  111.  247;  Brown  v.  Tuttle, 

79  111.449;  Cox  v.  Jordon,  86  111.  560;  27  111.  App.  389;   Madderon  v.  Mfg. 

Kipp  V.  Bell,  86  111.  577;   McDou-ell  Co.,  35  111.  App.  588. 

V.  Totm,  90  III.  359;  Tliomasx.  Ins.  '  ^i^h  v.  Farwell,  160  111.  236. 

Co.,  108  111.  91;  Ins.  Co.  v.  Ludwig, 


AMENDMENTS.  709 

"  No  amendment  shall  be  cause  for  a  continuance  unless  the 
part}^  affected  thereby,  or  his  agent  or  attorney,  shall  make 
affidavit  that  in  consequence  thereof  he  is  unprepared  to  pro- 
ceed to  or  with  the  trial  of  the  cause  at  that  term,  stating  in 
such  affidavit  what  particular  fact  or  facts  the  party  expects 
to  prove  by  such  evidence,  and  that  he  verily  believes  that  if 
the  cause  is  continued  he  will  be  able  to  procure  the  same  by 
the  next  term  of  the  court;  provided,  that  if  the  court  is  sat- 
isfied that  such  evidence  would  not  be  material  on  the  trial  of 
the  cause,  or  if  the  other  party  will  admit  the  affidavit  in  evi- 
dence, subject  to  the  effect  given  to  affidavits  for  a  continu- 
ance    *     *     *     the  cause  shall  not  be  continued." ' 

Under  our  statute,  the  court  may  allow  an  amendment  of 
the  declaration  to  avoid  a  variance,  upon  such  terms  as  it  may 
see  fit  to  impose,  after  which  the  cause  may  proceed  as  though 
no  variance  had  ever  existed.^ 

In  proper  cases  the  court  may  allow  amendments  and  pro- 
ceedings in  a  cause  to  be  filed  nunc  pro  tunc.  But  this  should 
never  be  allowed  when  it  w^ould  work  injustice.^ 

Terms. — When  an  amendment  is  allowed,  the  court  usually 
imposes  terms  upon  the  party  at  whose  instance  the  amend- 
ment is  made,  as  the  payment  of  costs.  This,  hoAvever,  is  in 
the  discretion  of  the  court.* 

Ameiidmeiit  of  executions. — An  execution  may  be  amended 
by  the  judgment  as  well  after  as  before  a  sale  under  it.'  But 
it  will  not  be  permitted  to  amend  an  execution  by  striking 
out  the  name  of  the  county  to  which  it  is  directed,  and  insert- 
ino-  another,  after  a  sale  under  such  writ.' 

Amendment  of  returns. — By  the  fourth  section  of  the  stat- 

1  Rev.  Stat.  (1893)  1074;  Rev.  Stat.  (1893),  142;     Rev.    Stat.  (1895),  144; 

(1895)  1158;  2  Starr  &  Curtis  1788;  Heslep  v.  Peters,  3  Scam.  45;  Jack- 

Dobhins    v.    Higgins,    78    111.    440;  son  v.  Warren,  S2  III.  Sdl;  Mi sch  v. 

Crist  V.  Wray,  76  111.  204;   3mis  v.  McAljnn,  78  111.  507;  R.    R.   Co.  v. 

Executors,  76  111.  381;  R.  R.  Co.  v.  Logiie,  58   111.   App.   142;    Jenks  v. 

Stein,  75  111.  41.  Vandolah,  29  111.  App.  163. 

"^  Ry.  Co.   V.  Ward,   135   111.    511;  ^  Leicis    v.    Limlley,   28  III.    147; 

Society  v.  Fietsam,  97  111.  474.  Durham  v.  Heaton,  28  111.  264;  Mc- 

^ Littlefleld    v.     Schmoldt,  U  III.  Cormick  v.  Wheeler,  m  III.  1U. 

App.  624.  ^  Bybee  v.  Ashby,  2  Gilm.  151;  Mc- 

*  1  Starr  &  Curtis  265;  Rev.  Stat.  Cormick  v.  \Mieeler,  36  111.  114. 


TIO  AMENDMENTS. 

ute  of  amendments  "  the  returns  of  the  sheriffs  or  other 
officers  may  be  amended  "  according  to  the  truth  of  the  mat- 
ter, by  the  court  to  which  the  return  shall  be  made,  in  its  dis- 
cretion, as  well  before  as  after  judgment.'  Such  amendment 
may  be  made  after  a  cause  lias  been  appealed."  At  the  term 
to  which  the  process  is  returnable  the  leave  may  be  allowed 
without  notice  to  the  party  affected,  and  as  a  matter  of  course.^ 
But  after  a  writ  has  been  actually  returned  to,  and  placed  in, 
the  clerk's  office,  the  return  can  only  be  amended  by  leave  of 
the  court,  which  leave  is,  however,  rarely  refused.*  And  after 
the  term,  and  after  the  term  of  the  office  of  the  officer  making 
the  return,  it  may  be  amended  within  any  reasonable  time, 
upon  proper  notice  to  parties  to  be  adversely  affected.^  But 
the  amendment  can  only  be  made  by  the  officer  who  made  the 
return  and  upon  proper  notice.® 

Amendment  of  recortl. — Courts  have  authority  to  alloAV 
amendments  of  their  records,  during  the  term  in  which  they 
are  entered.' 

It  is  a  well  settled  rule  that  after  a  term  has  expired  a 

1  Rev.  Stat.  (1893),  143;  Rev.  Stat.  v.  College,  70  111.  236;   see  Howell  v. 

(1895),   145;    1   StaiT  &  Curtis  272;  Ins.   Co.,   62    111.   50;    O' Conner  v. 

County    V.   Milligan,   143    111.    321;  W^t7son,  57  111.  226. 

Moore  v.  Purjile,  3  Gilm.  149;  Mont-  '  Mill   Co.   v.   Bank,    97  111.  294; 

gomery  v.  Broum.  2  Gilm.  581 ;  3Ior-  Thrifts  v.  Fritz,  101  111.  457;  Howell 

risv.  Trustees,  15  111.  266;    Turney  v.  Ins.  Co.,  62  111.  50;  Terry  \.  Col- 

V.  Organ,  16111,  43;  Hawesv.  Hawes,  lege,  70  111.  236;   Thatcher  v.  Miller, 

33  111.287;   Dunn  y.   Rogers,  ^^  l\\.  13  Mass.    271;   Johnson  \.  Donnell, 

260;   Johnson  v.    Adelman,   35   111.  15  111.  97;   Moi-ris  v.  Trustees,  15  111. 

265;  Kinney  V.   Knoehel,  ^IIW.  ^11;  2%%;  s,ee  Frazier  \ .  Laughlin,  \  GWm. 

R.  R.  Co.  V.  Butler,  53  111.  323;  Ins.  185;  Spellmeyer  v.  Gaff,  112  111.  29; 

Co.  V.  Chamber  of  Com.,  69  111.  22;  Gaff  v.  Spellmeyer,  13  Bradw.  294; 

Smith  V.  Bridge  Co.,  13  Bradw.  572;  Co\mty  v.  Milligan,  143  111.  321. 

Tucker  v.    Hamilton,    108  111.   464;  "^  Wilson  v.   Greathouse,  1  Scam. 

Noyes  v.  Kingman,  40  111.  App.  187.  174;  O'Conner  v.  Wilson,  57  111.  226. 

"^  Ellis  V.   Eubanks,  3  Scam.  584;  "<  Stahl  v.    Webster,    11    lU.    511; 

Hau'esv.  Hawes,  d3m.  28Q;    Toledo  Coughran  v.  Gutchens,   18  111.390; 

V.    Butler,  53   111.   323;    Tennant  v.  see  Smith  v.  Vanderberg,  46  111.  34; 

Hargardine,  58111.  App.  368.  Leslie  v.  Fisher,  62  111.  118;  Seeley  v. 

WConner  v.   Wilson,  57  111.  226;  Pelton,  63  111.  101;  Tob.  Co.  v.  Ran- 

Ins.    Co.   v.    Kellogg,   82    111.    614;  dall,  114  111.  425;  Hansen  v.  Schlei- 

Windett  v.  Hamilton,  52  111.  180.  inger,  125  111.  234. 

*  Nelson  v.  Cook,  19  111.  440;  Terry 


AMENDMENTS.  711 

court  has  no  authority  to  set  aside  a  judgment,  or  to  amend  it 
except  in  matters  of  form  and  for  the  purpose  of  correctino- 
clerical  errors/  but  it  may  be  opened  or  set  aside  by  consent 
of  the  parties.* 

It  is  also  a  general  rule  that  amendments  of  the  record  will 
not  be  alloAved  after  the  close  of  the  term  at  which  the  record 
was  made,  unless  there  are  some  memoranda,  minutes  or  notes 
of  the  judge,  or  something  appearing  on  the  records  or  files  to 
amend  by,  and  notice  should  be  given  of  an  amendment  in  a 
m^atter  of  form.' 

Where  an  order  allowing  a  material  amendment  in  the 
record  is  entered  at  a  subsequent  term  without  notice  to  the 
adverse  party,  the  court  entering  such  order  is  without  juris- 
diction, and  such  order  can  be  assailed  in  a  collateral  as  well 
as  in  a  direct  proceeding.* 

It  is  not  admissible  to  affect  rights  already  vested,  by  an 
amendment  of  a  record  subsequent  to  the  time  of  their  being 
vested,  nor  to  affect  one  not  a  party  in  the  proceeding  in  which 
the  amendment  is  allowed.* 

Under  our  practice,  amendments  of  the  record  in  affirmance 
of  the  judgment,  when  there  is  anything  to  amend  b^',  may, 
upon  notice,  be  made  at  a  term  subsequent  to  that  at  which 
final  judgment  is  rendered;  but  amendments  not  in  affirmance 
but  in  derogation,  of  the  judgment,  are  not  allowed  at  a  term 
subsequent  to  that  at  which  final  judgment  is  rendered.* 

^Ayer  v.    Cliimgo,    149   111.    262;  McCormick  v.   Wheeler,  36  111.  114; 

O Connor  v.  Mullen,  11  111.  57;  Hun-  Becker  v.  Sender,  89  HL  596. 
ter  V.  Sherman,   2  Scam.    539;  see  *Ayer  v.    Chicago,    149    lU.  262; 

Campbell  v.  Head,  13  111.  122;  3Iich-  O'Connor  v.  Mullen,  11  111.  116;  see 

aeltree  v.  Sparks,  1  Scam.  122;  Dun-  Coughren  v.    Gutchens,  18  111.    390; 

can  V.  McAfee,  3  Scam.  93;  Frame  Rauh    v.    Ritchie,    1    Bradw.    188; 

V.  Frame,  16  111.  155;  Durham  v.  S.  Swift  v.   Allen,    55  111.    303;    Lilly 

P.  Com.,  87  111.  185;  Ins.  Co.  v.  Kel-  v.  Shair,  59  111.  72;  Mains  v.  Cosner, 

logg,   82  111.  614;  Lilly  v.  Shau\  59  67  111.  536;  Ives  v.  Hulse,  17  Bradw. 

IlL  72;  Hotel  Co.  v.  Johnson,  57  111.  30;  Gibbie  v.  Mooney,  121  111.  255. 
App.   608;  Baldwin  v.  McClelland^  ^  Wooters  y.  Joseph,  137  111.  113. 

152  111.  42.  « Planing  Mill    Co.   v.  Bank,  97 

^Hawes  v.  People,  129  111.  123.  111.  294;  see  also,  Powell  on  Appel- 


^Ayer  v.  Chicago,  149  111.  262 
Frew  V.  Danforth,  126  111.  242 
Homer  v.  Horner.  37  111.  App.  199 
Coughran  v.  Gutchens,  18  lU.  390 


late  Proceedings,  Appendix,  p.  387, 
notel;  Fielden  v.  People,  128  111. 
595. 


712  AMENDMENTS. 

There  is  no  error  in  allowing  the  amendment  of  the  declara- 
tion after  verdict,  and  pending  a  motion  for  new  trial,  by  the 
filing  of  additional  counts  upon  the  same  cause  of  action  upon 
which  the  suit  ^vas  brought.' 

Amendment  of  pleadings  in  vacation. — By  the  "act  to 
extend  the  powers  of  judges  of  circuit  courts  in  vacation," 
(1872,)  the  judges,  within  their  respective  circuits,  have  power 
in  vacation  to  permit  amendments  to  pleadings;  and  this  may 
be  done  during  a  term  of  court  held  in  another  county  than 
that  in  which  the  suit  is  pending.  The  party  applying  must 
give  at  least  seven  days'  notice  to  the  opposite  party,  or  his 
attorney  of  record.  Any  order  made  in  pursuance  of  such  ap- 
plication must  be  signed  by  the  judge,  and  filed  and  entered 
of  record  by  the  clerk  of  the  court  in  which  the  proceedings 
are  had,  and  will  take  effect  from  the  date  of  such  filing,^ 

Amendment  of  process  out  of  term. — The  Practice  Act 
provides  that  "  a  party  intending  to  move,  out  of  term,  to  set 
aside  or  quash  any  execution,  replevin  bond,  or  other  proceed- 
ings," may  obtain  a  certificate  from  the  judge,  staying  further 
proceedings,  etc.  "  But  in  no  case  shall  the  judge  grant  such 
certificate  when  the  error  complained  of  may,  by  the  direction 
of  the  judge  to  the  clerk  issuing  the  process,  be  corrected,  but 
the  judge  shall  order  the  correction,  and  the  clerk  shall  make 
the  correction  in  the  process  as  if  ordered  in  term  time."  ^ 

Correction  of  errors  in  fact,  after  judgment. — The  Prac- 
tice Act  also  provides  as  follows:  "The  writ  of  error  coram 
nobis  is  hereby  abolished,  and  all  errors  in  fact  committed  in 
the  proceedings  of  any  court  of  record,  and  which  by  the 
common  law  could  have  been  corrected  by  said  writ,  may  be 
corrected  by  the  court  in  which  the  error  was  committed, 
upon  motion  in  writing  made  at  any  time  within  five  years 
after  the  rendition  of  final  judgment  in  the  case,  upon  reason- 
able notice.  "When  the  person  entitled  to  make  such  motion 
shall  be  an  infant,  feme   covert,  non  covij^os  mentis,  or  under 

•  Order  of  Mutual  Aid  v.  Paine,  «2  Starr  &  Curtis  1827;  Rev,  Stat. 

122  111.  625.  (1895)  1163;   Fev.   Stat.   (1893)  1079; 

2  Rev.  Stat.  (1893)  437;    1  Starr  &  see  Keefer  v.  Mason,  36  III.  406;  R. 

Curtis  710;    Rev.   Stat.   (1895)    479;  R,  Co.  v.  Chenoa,  43  111.  209. 
see  Keith  v.  Kellogg,  97  111.  147. 


AMENDMENTS.  713 

duress,  at  the  time  of  passing  judgment,  the  time  of  such  dis- 
ability shall  be  excluded  from  the  computation  of  said  five 
years." ' 

Other  statutory  provisions. — There  are  various  other  pro- 
visions in  the  statutes  concerning  amendments  in  particular 
cases;  as  for  filing  a  sufficient  affidavit  or  bond,  or  amendino- 
the  writ,  in  proceedings  by  attachment;  *  for  supplying  a  suffi- 
cient bond,  on  appeal  to  the  supreme  court;  ^  for  amendino- 
awards,"  and  for  amending  appeal  bonds,  on  appeals  from  jus- 
tices of  the  peace.* 

By  section  61  of  the  Practice  Act  (1872),  exceptions  may  be 
taken  to  decisions  of  the  court  in  overruling  motions  to  amend; 
and  any  decision  so   excepted  to  may  be  assigned   for  error.* 

Leave  to  amend  pleadings  necessary  to  present  an  issue  on 
the  merits  of  a  cause,  is  no  longer  discretionary  with  the 
court,  but  is  a  legal  right  of  the  party,  and  when  proper  ap- 
plication is  made  for  leave  to  amend  pleas,  on  sustaining  a 
demurrer  thereto,  the  court  has  no  right  to  require  the 
defendant  to  show  by  an  affidavit,  of  facts,  in  detail,  a  meritori- 
ous defense  to  plaintiff's  action.  Such  terms  can  not  be  im- 
posed as  a  condition  of  amending  pleas  under  the  statute 
authorizing  amendments.' 

Changing  cause  from  law  to  chancery. — Courts  of  chan- 

1  Rev.  Stat.  (1893)  1080;  2  Starr  &  « Starr  &  Curtis  1456;  Rev.  Stat. 
Curtis  1831;  Rev.  Stat.  (1895)  1164;  (1895)973;  Rev.  Stat.  (1893)  910;  see 
see -Fia?  V.  ^ri/iji,  75111.  232;  C'oM?'sere.  Swafford  v.  Peoj^le,  1  Scam.  289; 
V.  Hixon,  78  111.  339;  Mains  v.  Cos-  Grain  v.  Bailey,  1  Scam.  321 ; 
ner,  67  111.  536;  Ins.  Co.  v.  Fassett,  Hubbard  v.  Freer,  1  Scam.  467; 
102  111.  315;  Morrison  v.  Stewart,  Walsh  w.  People,  12  111.  77;  Harlan 
21  111.  App.  113.  V.  Scott,  2  Scam.  65;  Lea  v.  Vail,  2 

2  Rev.  Stat.  (1893)  173;  1  Starr  &  Scam.  473;  Patty  v.  Winchester,  20 
Curtis  322;  Rev.  Stat  (1895)  177;  111.  261;  Slaten  v.  Peoiyle,  21  111.  27; 
see  BeecJier  v.  James,  2  Scam.  462;  Weist  v.  People,  39  111.  507;  Rider  v. 
Roberts  v.  Dunn,  71  111.  46.  Bagley,  47  111.  365;  Tedrick  v.  Wells, 

3  2  Starr  &  Curtis  1834;  Rev.  Stat.  152  111.  214. 

(1895)  1164;   Rev.  Stat.    (1893)   1080;  «  2  Starr  &  Curtis  1826;  Rev.  Stat, 

see   GilUlan  v.    Gray,    13    111.   705;  (1893),  1079;  Rev.  Stat.  (1895),  1163. 

Carroll  v.  City,  2  Bradw.  481.  '  7ns.  Co.  v.  Trust  Co.,  1  Bradw. 

•»1  Starr  &  Curtis  304;   Rev.  Stat.  391;  see  Mardi  v.    Mayers,  85  111. 

(1895),  167;    Rev.   Stat.   (1893),    164;  177;  Hays    v.    Loomis,   84    lU.    18; 

see    Howell  v.  Hoioell,    26  111.  460;  Misch    v.    McAlpine,    78    111.    507; 

Farr  v.  Johnson,  25  111.  523.  Thomas x,  his.  Co.,  108  111.  91. 


714  AMENDMENTS. 

eery  and  courts  of  law  are,  in  this  state,  distinct  tribunals. 
Tiiough  they  may  be  presided  over  by  the  same  judge,  they 
possess  separate  and  distinct  jurisdiction.  Therefore  it  would 
be  improper  to  change  an  action  at  law  to  a  suit  in  chancery.' 
Judgments  after  term. — Where  a  judgment  has  been  inad- 
vertently entered  for  the  plaintiff  instead  of  for  the  defend- 
ant, an  amendment  may  be  allowed  upon  motion,  even  after 
the  expiration  of  the  term,  nimcjyro  tunc.'' 

Bills  of  exceptions. — Where  a  bill  of  exceptions,  through 
inadvertence  or  mistake,  is  incorrect,  it  may,  on  due  notice,  at 
a  subs3quent  term,  be  amended.' 

Defects  cured  by  pleading  to  the  merits.— It  is  the  well 
settled  doctrine  that  many  defects  which  might  have  been 
fatal  on  demurrer  are  waived  and  cured  by  pleading  to  the 
merits.  After  plea  filed,  a  declaration  will  receive  a  reason- 
able interpretation.* 

Defective  pleadings  cured  by  verdict. — Where  there  is 
any  defect,  imperfection  or  omission  in  any  pleading,  whether 
in  substance  or  in  form,  which  would  have  been  a  fatal  ob- 
jection upon  demurrer,  yet  if  the  issue  joined  be  such  as 
necessarily  required,  on  the  trial,  proof  of  the  facts  so  defect- 
ively or  imperfectly  stated  or  omitted,  and  without  which  it 
is  not  to  be  presumed  that  either  the  judge  would  direct  the 
jury  to  give,  or  the  jury  would  have  given,  the  verdict,  such 
defect,  imperfection  or  omission  will  be  cured  by  the  verdict;* 
but  where  no  cause  of  action  is  stated,  the  omission  is  not 
cured  by  the  verdict  and  the  objection  may  be  urged  in  arrest 
or  on  error.' 

1  LuUmanv.  Barrett,  18  Bradw.  n  Chit.  PI.  (7  Am.  Ed.)  711-712; 
573,  And.    Steph.    PL    225;    Keegan   v. 

2  Morrison  v.  Steivart,  21  111.  Kinnare,  123  111.  280;  R.  R.  Co.  v. 
App.  113;  Ives  v.  Hulse,  17  Bradw.  Hines,  132  111.  161;  Shreffler  v.  Nadel- 
30;  Freeman  on  Judgts.,  Sec.  70.  hoffer,  133  111.  536;  R.  R.  Co.  v.  Fee- 

^Heinsen  v.    Lamb,   111  111.  550;  /ia?i,  149  111.  202;  R.  R.  Co.  v.  Wills, 

People  \.   Anthony,    129    111.    218;  140111.614. 

Wright  v.  Griffey,  146  111.  394;  R.  "  Shreffler  v.  Nadelhoffer,  133  111. 

R.  Co.  V.  Levy,  57  111.  App.  365.  536;  Bowman  \\.  People,  114  111.474; 

*  Railicay  Co.  V.  Hessions,  150  lU.  Rothschild  v.   Bouseke,  Idl  111.265; 

546.  Gould's  PI.,  Sec.  22;  Chit.  PI.   (7th 


AMENDMENTS.  715 

Where  a  defendant  goes  to  trial  without  any  answer  to  one 
of  his  pleas,  and  without  moving  for  judgment  thereon,  he 
thereby  waives  the  necessity  for  a  formal  issue,  and  the  irreg- 
ularity will  be  cured  by  the  verdict.' 

Authorities. — For  a  comprehensive  and  instructive  disser- 
tation upon  the  subject  of  amendments,  the  pleader  may  with 
profit  consult  Andrews'  Stephen's  Pleadings  (editor's  note 
to  note  83,  appendix,  page  473),  where  the  various  statutes 
upon  the  subject  and  the  history  thereof  may  be  found. 

Am.  Ed.)  712,  *713;  And.  Steph.  PL  '  Shreffler  v.  Nadellioffer,  133  III. 

235;  Stearns  v.  Cape,  109  111.   340;      536;  Funk  v.  Babbitt,  156  111.  408. 
Ins.  Co.  V.  Kirkpatnck,  61  111.  App. 
74. 


CHAPTER  XXIY. 

CONTINUANCES. 

It  is  in  the  power  of  the  court,  generally,  to  grant  a  con- 
tinuance to  either  party,  upon  sufficient  cause  shown.' 

The  application  is  addressed  to  the  sound  discretion  of  the 
trial  court,  whose  action  in  refusing  same  can  not  be  assigned 
for  error,  unless  it  is  evident  that  such  discretion  has  been 
abused.'' 

How  and  when  applied  for. — An  application  for  a  con- 
tinuance is  made  by  motion,  based  on  the  affidavit  of  the 
partv,  or  of  some  other  person  acting  for  him.  The  motion  is 
often  made  orally,  though  the  better  practice  is  to  make  all 
motions  in  writing.  If  the  application  is  granted,  the  fact  is 
minuted  on  the  docket.  The  motion  should  be  made  as  soon 
as  possible  after  the  commencement  of  the  term,  or  after  the 
cause  of  continuance  is  known  to  exist.** 

For  want  of  testimony. — The  want  of  material  testimony, 
which  the  party  has  used  due  diligence  to  obtain,  and  which 
he  can  probably  procure  at  a  future  term,  is  a  good  cause  for 
a  continuance  of  the  suit.  The  Practice  Act  provides,  in  this 
regard,  as  follows : 

"  When  either  party  shall  apply  for  a  continuance  of  a  cause 
on  account  of  the  absence  of  testimony,  the  motion  shall  be 
grounded  on  the  affidavit  of  the  party  so  applying,  or  his  au- 
thorized agent,  showing  that  due  diligence  has  been  used  to 
obtain  such  testimony,  or  the  want  of  time  to  obtain  it,  and 
what  particular  fact  or  facts  the  party  expects  to  prove  by  such 

«  HaU  V.  Reher,  36  HI.  483;  Crofhy  111.  App.  237;  FarreU  v.  McKee,  36 

V.  Kiest,  135  111.  458.  111.  228;  Penn.  Co.  v.  Rndel,  100  III. 

2  Aid Ass'n  v.  Prim,  19  111.  App.  224;  603. 

Pardridge  v.  Wing,  75  111.  236;  Hahn  ^  See  McCarthey  v.  Mooney,  41  111. 

x. Ruber,  83  111.  244;  Aidt  v.  Rare-  300;  Grierv.  Gibson,  36111.  521. 
son,  14  111.  484;  Hai-ris  v.  Rose,  26 

(716) 


CONTINUANCES.  "  717 

evidence;  and  if  the  evidence  is  tlie  testimony  of  a  witness,  his 
place  of  residence,  or  if  his  place  of  residence  is  not  known, 
showing  that  due  diligence  has  been  used  to  ascertain  the  same, 
and  that  if  further  time  is  given  his  place  of  residence  can  be 
ascertained.' 

"  Should  the  court  be  satisfied  that  such  evidence  would  not 
be  material  on  the  trial  of  the  cause,  or  if  the  other  party  will 
admit  the  afHdavit  in  evidence,  the  cause  shall  not  be  con- 
tinued. 

"  When  the  affidavit  is  concerning  the  evidence  of  a  witness, 
the  party  admitting  such  affidavit  shall  be  held  to  admit  only 
that  if  the  absent  witness  were  present,  he  would  testify  as 
alleged  in  the  affidavit,  and  such  admission  shall  have  no 
greater  force  or  effect  than  if  such  absent  witness  were  present 
and  testified  as  alleged  in  the  affidavit,  leaving  it  to  the  party 
admitting  such  affidavit  to  controvert  the  statements  contained 
therein,  or  toimpeach  said  witness,  the  same  as  if  such  witness 
•were  present  and  examined  in  open  court."  ^ 

The  form  of  the  affidavit  for  a  continuance,  on  account  of 
the  absence  of  a  witness,  may  be  as  follows : 

No.  363.    Affidavit  by  defendant  for  continuance,  on  accotint  of  absence  of 

witness.^ 

In  the Court. 

Term,  18—. 

C.  D.  ) 
ats.     ■  Assumpsit. 

A.  B.  ) 

C.  D. ,  the  above  named  defendant,  makes  oath  and  says  that  he  can  not 
safely  proceed  to  the  trial  of  this  cause  at  the  present  term  of  this  court, 
on  account  of  the  absence  of  one  J.  K.,  who  resides  in ,  and  is  a  material 

'  2  Starr  &  Curtis  1809;  Rev.  Stat.  ery  v,  Robinson,  85  111.  174;  By.  Co. 

(1893)  1177;  Rev.  Stat. (1895)  1161;  see  v.  Clark,  70  111.  276;  Slate  v.  Eisen- 

Slade  V.  McClure,  76  111.  319;  Wray  meyer,  94  111.  96;  Hart  v.  Seymour, 

V.  People,  78  111.  212;  Conley  v.  Peo-  147  111.  598. 

pie,  80  111.  236;  Lockhart  v.  Wolf,  82  ^  See  Lee  v.  Bates,  1  Scam.  528; 

111.  87;  School  Dir.  v.  Hentz,  57  111.  Adams  v.  Colton,  2  Scam.  71;  Allen 

App.  648;  Ry.  Co.  v.  Duffin,  126  111.  v.  Dau-ning,  2  Scam.  454;  Wade  v. 

100,  Halligan,  16  111.  508;  Miles  v.  Dan- 

^Starr  &  Curtis  1811;  Rev.  Stat,  /or^/i,  32  111.  59:  Gingrich  v.  People, 

(1893)  1077;  Rev.  Stat.  (1895)  1161 ;  see  34  111.  449;  Morgan  v.  Raymond,  38 

Graff  V.  Brown,  85  lU.  89;  Montgom-  111.  449. 


718  *  CONTINUANCES. 

witness  on  the  part  of  this  affiant.  And  this  affiant  further  says,  that  he 
expects  to  prove  by  the  said  J.  K.,  that  {here  set  forth  u'hat  is  expected  to 
he  proved  by  the  ioit7iess.)  And  this  affiant  further  says,  that  (here  set  forth 
what  diligence  has  been  used  to  procure  the  attendance  or  testimony  of  the 
witness,  and  to  ascertain  his  place  of  residence,  if  alleged  to  be  unknown.) 
And  this  affiant  further  says,  that  he  knows  of  no  other  person  or  persons 
by  whom  he  can  so  fully  prove  the  matters  above  set  forth;  [that  if  further 
time  is  given,  the  place  of  residence  of  the  said  J.  K.  can  be  ascertained;] 
that  this  affiant  expects  to  procure  the  testimony  of  the  said  J.  K.  at  the 
next  term  of  this  court;  and  that  this  application  is  not  made  for  delay, 
but  that  justice  may  be  done. 

CD. 
Subscribed  and  sworn,  etc. 

Where  a  party  moves  for  a  continuance  on  the  ground  of 
the  absence  of  material  testimon\^,  he  should  show  in  his 
affidavit  what  the  testimony  would  be;  and  if  the  court  thinks 
it  material,  a  continuance  will  be  granted.' 

If  an  affidavit  is  merely  filed,  and  no  motion  is  founded 
thereon,  it  is  not  the  duty  of  the  court  to  grant  the  continu- 
ance." 

A  motion  for  a  continuance  founded  upon  the  absence  of 
witnesses,  will  be  refused,  if  the  facts  to  be  proved  are  not 
material  to  the  issue  in  the  cause." 

An  affidavit  for  a  continuance  which  does  not  show  the 
residence  of  a  witness,  is  insufficient.  This  is  indispensable,  as 
connected  with  his  identification  and  the  diligence  used  to 
obtain  his  attendance." 

A  person  desiring  a  continuance  of  a  cause  is  bound  to 
show  that  he  has  made  reasonable  exertions  to  prepare  for  the 
trial,  without  success,  or  some  good  reason  for  not  making 
such  exertions."    But  each  case  depends  upon  the  particular 

^  Pence  V.  Christman,  15  Ind.  257;  *  Lee  v.  Quirk,  20  111.  392;  Smith 

see  McKichan  v.  McBean,  45  111.  228;  v.  Powell,  50  111.  21;  see  Richardson 

Long  V.  People,  135  111.  435.  v.  People,  31   111.   170;  Lockhart  v. 

^  Burlingame  v.  Turner,  I  Scam.  Wolf,  82  111.  37;  Shirwin  v.  People, 

589;  Bet  v.  Collins,  102  111.  402.  69  111.  55. 

3  Dodge  v.  Deal,  28  111.  303;  arun-  ^  Dunlap  v.   Davis,    5    Gilm.  85; 

dies  V.  Bliss,  86  111.  132;  Hodges  v.  Cole  v.  Choteau,  18111.  439;  Moorev. 

Nash,  141  111.  391;  Stringam  v.  Par-  Goelitz.  27  111.  18;  Richardson  v.  Peo- 

ker,  56  111  App.  36;  Long  v.  People,  pie,  31  111.  170;  Day  v.  Gelston,  22  111. 

135111.  435.  103;  Meyers  v.  Andrews,  87  111.  433; 


CONTINUANCES.  719 

circumstances  shown.  A  party  does  not  show  diligence  if  he 
relies  upon  making  his  proof  by  the  deposition  of  a  witness 
who,  upon  examination,  disappoints  him.  It  is  his  duty  to 
inform  himself  as  to  the  knowledge  of  the  witness;  and  if  such 
witness  does  not  possess  the  requisite  information,  the  party 
should  procure  the  testimony  he  requires  from  other  witnesses, 
if  any  can  be  found.' 

A  continuance  will  not  be  granted  because  a  witness  has 
said  that  he  would  be  present  at  the  trial,  and  that  he  had 
been  served  with  suhjjcena  on  behalf  of  the  opposite  party. 
The  party  desiring  the  testimony  of  a  witness  should  secure 
his  presence  at  the  trial." 

Where  a  witness  could  not  come,  on  account  of  sickness  in 
his  family,  and  therefore  his  attendance  could  not  have  been 
procured  by  suhjnima,  it  was  held  that  it  did  not  matter 
whether  he  had  been  served  or  not,  and  that  a  continuance 
ought  to  have  been  granted.' 

When  a  continuance  has  once  been  granted,  on  affidavit, 
another  continuance  should  not  be  granted,  where  even  ordi- 
nary efforts  have  not  been  made  to  obtain  the  testimony  of 
the  witnesses,  and  their  absence  is  not  accounted  for.*  Greater 
diligence  should  be  required  on  a  second  or  third  application 
for  a  continuance,  than  on  the  first  application.  The  fact  that 
a  party  applies  for  the  continuance  of  a  cause  a  second  time, 
on  account  of  the  absence  of  the  same  witness,  might  create 
the  suspicion  that  the  party  was  not  sufficiently  anxious  for 
his  attendance  to  make  the  necsssary  efforts  to  procure  it;  and 
evidence  of  greater  diligence  will  be  required  than  on  a  first 

Pardridge  v.  Wing,  75  111.  236;  Ins.  ^ Moore  v,  Goelitz,  27  111.  18;  Gass 

Co.  V.Nelson,  15111  548;  Richards  V.  v.  Howard,   43  111.  223;  Walker  v. 

Glennon,  11  m.U',  Coffey  V.  Fossel-  Douglas,    70    111.     445;    Fisher    v. 

man,   72   111.  69;   Sutton  v.   People,  Greene,  95  111.  94. 

119  111.  250;  Johnson  v.    Glover,  19  '^  Allen  v.  Doicning,   2  Scam.  455; 

111.  App.  585;  Ass'nv.  Prim,  \Q  111.  see  Ins.    Co.   v.  Mfg.  Co.,   I   Gilm. 

App.  224;  Trask   v.  People,  151   111.  236;  Searls  v.  Munson,  17  III.  558; 

523.  seeSchnellv.  Rothbath,  71  lU.  83. 

'Cole  V.    Choteau,    18    111.     439;  * McConnell  v.  Johnson,  2  Scam. 

Gnindiesv.  Bliss,  Se  III.  1S2;  3Ieyers  522;  Shook  v.    Thomas,    21   111.  87: 

V.  Andreics,  87  111.  433:  Freeport  v.  Slade  v.  McClure,  76  111.  319;  117/- 

Ishell,  93  111.  381.  son  v.  King,  83  lU.   232. 


720  CONTINUANCES. 

application;  and  still  greater  diligence  should  be  shown 
on  each  successive  application.'  The  party  should,  on  the 
second  application,  be  required  to  show  something  more  than 
a  mere  service  of  a  suhpcena;  he  should  avail  himself  of  other 
legal  means  to  compel  the  attendance  of  the  witness.  If  such 
witness  is  within  the  reach  of  the  court,  the  party  should 
apply  for  an  attachment  to  compel  his  attendance,  as  soon  as 
he  fails  to  attend  under  the  siihpcBiia.  The  affidavit  should 
state  that  the  witness  is  not  absent  by  the  consent  of  the  party; 
and  also  that  the  party  expects  to  procure  the  evidence  of  the 
witness  by  the  next  term.  The  affidavit  should  also  state  that 
the  party  has  no  other  witness  by  whom  the  same  facts  can  be 
proved;  ^  or  if  there  is  a  disputed  point,  and  numerous  wit- 
nesses are  to  be  examined,  show  that  fact,  or  that  there  is  a 
question  of  identity  upon  which  there  will  be  a  contrariety  of 
evidence.  This  is  necessary  in  order  to  show  the  materiality 
of  the  testimony  of  the  witness.^ 

If  the  testimony  of  the  absent  witness  is  important  only  in 
connection  with  certain  facts,  those  facts  should  be  set  forth  or 
referred  to  in  the  affidavit,  so  that  the  materiality  of  the  evi- 
dence may  be  apparent  to  the  court.*  The  affidavit  should 
set  forth  the  facts  expected  to  be  proved  with  such  certaint}'' 
that  the  opposite  party  can,  if  he  thinks  proper,  admit  the 
affidavit  and  go  to  trial. ^  Where  a  party  relies  upon  the 
promise  of  a  witness  to  be  present  at  the  trial,  he  can  not  ob- 
tain a  continuance  if  the  witness  does  not  attend.'  To  justify 
the  continuance  of  a  cause  by  reason  of  the  absence  of  a  wit- 

'  Brewing  Ass'n  v.  Hutmacher,  127  *  Bailey  v.  Hardy,  13  111.  459;  see 

111.    652;    Slade  v.    McClure,  76  111.  Marble  v.    Bonhotel,   35    111.    240; 

319;   Wilson  v.   King,   83    111.    232.  Grundies  v.  Bliss,  86  III.  132. 

^ Hodge  Y.  Nash,  Ul  m.  S9l;  Com.  ^  McBain    v.    Enloe,   13    111.   76: 

V.  Barber,  62  111.  App.  108.  Moody  v.  People,  20  111.   315;    see 

^  Shook   V.  Thomas,    21    111.     87;  Hopkinson  v.   Jones,  28  111.  App. 

Fames  v.  Hennessy,  22  111.  628;  Mor-  409. 

gan  V.Raymond,  38  111.  449;  Birks  ^  Day  v.   Gelston,  22  111.  103;   see 

V.   Houston,   63  111.   77;    Coffey  v.  Gass  v.  toward,  43  111.  223;    Walker 

Fosselman,    72  111.    69;    Corbin  v.  v.  Douglas,  70  111,  445;  Lockhart  \\ 

People,  131  111.  615.  Wolf,  82  111.  37. 


CONTINUANCES.  721 

ness,  something  more  than  writing  letters,  and  making  in- 
quiries as  to  his  residence,  etc.,  is  required.' 

"Where  a  continuance  is  sought  on  account  of  the  absence  of 
a  party  in  interest  who  is  expected  to  testify  as  a  witness,  a 
higher  degree  of  diligence  is  required  to  procure  his  attend- 
ance or  deposition  than  where  the  absent  witness  is  a  stranger 
to  the  suit.^  Affidavits  in  support  of  a  motion  for  a  contin- 
uance based  upon  the  absence  of  a  party  to  the  suit  through  ill 
health,  should  set  up  his  expectation  as  to  returning,  or  the 
probability  of  obtaining  his  testimony  at  some  future  time.^ 

An  application  for  a  continuance  on  the  ground  of  the  absence 
of  a  material  witness,  stating  that  witness  left  the  country  and 
that  the  applicant  was  unable  to  ascertain  his  residence,  but 
not  showing  that  if  further  time  were  given  his  place  of  resi- 
dence could  be  ascertained,  is  insufficient  for  that  reason  and 
properly  denied.* 

An  application  for  a  continuance  on  account  of  the  absence 
of  a  witness,  should  not  only  show  diligence,  but  that  there  is 
no  other  witness  to  prove  the  same  facts,  and  that  the  witness 
may  be  in  attendance  at  another  term.  A  delay  of  six  months, 
without  having  a  suhpmia  issued  for  a  witness,  shows  a  want 
of  diligence.*  An  affidavit  which  shows  that  the  witnesses  have 
been  duly  required  by  subpoena  to  attend  the  court  at  which 
the  trial  is  to  be  had,  shows  sufficient  diligence  in  that  respect. 
The  court  may  ascertain  whether  a  witness  is  present,  and  if 
he  is,  may  overrule  the  application  for  continuance.® 

If  a  witness  resides  in  another  county  than  that  in  which 
the  court  is  held,  it  must  appear  that  his  fees  have  been  ten- 
dered or  paid  to  him,  before  a  party  can  have  a  continuance  on 
the  ground  of  his  not  appearing  after  being  summoned. 

•  Stevenson  v.  Sherwood,  22  111.  ^  Eames  v.  Hennessy,  22  III.  628; 
238;  Richards  v.  Glennon,  71  111.  see  Richardson  v.  People, 'dl  III.  nO; 
11;    Cook  V.  Norwood,  106  111.  558.           Glass  v.   Howard,  43  111.   223;  Mc- 

^ Mantonya    v.    Huerter,   85  111.  Kichan  v.  McBean,  45  111.  228:  Jar- 

App.  27.  vis  V.  Shacklock,  60  111.  378;  Gnai- 

^  Mantony a  v.  Huerter,  S5  III.  A])]}.  dies  v.  Bliss,  86  111.    132;  Dunn  v. 

27.  People,  109  111.  635;  Adams  v.  People, 

*  Heitschmidt  v.  McAlpine,  59  111.  109  111.  444. 

App.  231.  «  Wade  v.  HaUigan,  16  111.  507. 

46 


.722  CONTINUANCES. 

Where  the  affidavit  does  not  pretend  to  show  a  case  within 
the  statute,  entitling  the  party  to  a  continuance  as  a  matter 
of  right,  the  application  is  at  most  addressed  to  the  discretion 
of  the  court  to  which  it  is  made.' 

The  granting  of  a  continuance  by  a  court  can  not  be  as- 
signed for  error.'' 

The  amending  of  affidavits  for  continuance  is  highly  im- 
proper, and  should  not  be  allowed.'' 

Counter-affidavits  can  not  be  received  and  considered  on  an 
application  for  continuance.* 

By  reason  of  anieiidnieiit. — No  amendment  will  be  a  cause 
for  a  continuance  unless  it  appears  by  affidavit  that  the  oppo- 
site party  is  unprepared  to  proceed  to  or  with  the  trial  of  the 
cause,  etc." 

For  failure  to  file  declaration,  etc. — As  to  continuance  for 
want  of  declaration,  or  copy  of  instrument  or  account,  filed 
in  time,  see  page  29,  ante. 

The  defendant  is  entitled  to  a  continuance,  if  the  plaintiff 
does  not  file  a  copy  of  his  account  ten  days  before  the  term, 
where  he  has  common  counts  in  his  declaration,  as  well  as  a 
special  count  on  a  note.  If  the  plaintiff  desires  to  avoid  a  con- 
tinuance, he  can  stipulate  that  he  will  rely  alone  on  the  note, 
or  he  can  enter  a  noUeprosequi  as  to  the  common  counts.' 

i^hZ^v.  i2«M-soH,  14111.  484;  i2.i^.  Executors,  76  lU.   381;   Ry.   Co.  v, 

Co.    V.    McLaughlin,    63    111.    389;  Stein,  75  111.  41;  Cassem  v.  Oalvin, 

ShirwinY.  Peo2)le,&9  III.  55.  158  111.  30;    Wolfe  v.  Johnson,  152 

^BroolcsY.  McKinney,  iScam.  309;  111.  280;  Moshier  v.  Knox  College,  32 

Loeffner  v.   State,  10  Ohio  (State),  111.  156;  Kagay  v.  School  Trustees, 

598,  68  111.  75;  Lindseyv.  Lindsey,  40  111, 

'^McBain  v.  Enloe,  13  111.  76;  see  App.  389;  Rockford,  etc.,  R.  Co.  v. 

Stockley    v.    Ooodwin,   78  111.    127;  Fhillips,  66  111.  549;  Martin  v.  Ever- 

Peru   Coal   Co.  v.  Merrick,  79   111.  sal,  36  111.  222;  see  also  Phillips  v. 

112;   Aid  Ass'n  v.  Primm,  124  111.  Edsall,    127    111.    537;    Dotoney    v. 

100.  O'Donnell,    92    111.    559;    Driver    v. 

*Wick\.  Weber,  64  111.  167;  Whig  Ford,  90  111.  595;  Clause  v.  Bullock 

V.    Tillsan,    67    111.    351;    Waarich  Printing  Pi^ess  Co.,  20  111  App.  113; 

V.  Winter,  33  111.  App.  36.  Chicago,  etc.,  R.  Co.  v.  Goyette,  32 

f  2  Starr  &  Curtis  1788;  Rev.  Stat.  111.  App.  574;  Lewis  v.  Lanphere,  79 

(1893),  1074;  Rev.  Stat.  (1895),  1158;  III.  188. 

see  Dobbins  v.  Higgins,  78  111.  440;  ^Hawthorn  v.  Cooper,  22  111.  225; 

Crist  V.  Wray,  76  111.  204;  MiUs  v.  McCarthy  v.  Neu,  91  111.  127. 


CONTINUANCES.  723 

Where  a  suit  is  brouo-ht  by  an  indorsee  of  a  promissory  note, 
it  is  sutiicient  to  file  a  copy  of  the  note.  The  filing  of  a  copy 
of  the  indorsement  is  not  necessary.' 

Defendant  in  military  service. — The  Practice  Act  also  pro- 
vides that  it  shall  be  a  sufficient  cause  for  a  continuance,  in 
time  of  war  or  insurrection,  that  the  defendant  is  in  the  mil- 
itar}'-  service  of  the  United  States,  or  of  the  State  of  Illinois,  if 
it  shall  be  made  to  appear  to  the  court,  by  affidavit,  that  the 
presence  of  the  defendant  is  in  any  degree  necessary  to  a  full 
and  fair  defense  of  the  suit." 

Party  or  counsel  in  tlie  legislature. — It  is  further  provided 
by  the  Practice  Act,  that  in  any  suit  pending  while  the  General 
Assembly  is  in  session,  it  shall  be  a  sufficient  cause  for  a  con- 
tinuance if  it  shall  appear  to  the  court,  by  affidavit,  that  the 
party  applying,  or  any  attorney,  solicitor  or  counsel  of  such 
party,  is  a  member  of  either  house  of  the  General  Assembly, 
and  actually  attending  the  sessions  of  the  same,  and  that  the 
attendance  in  court  of  such  party  or  counsel,  etc.,  is  necessary 
to  a  fair  and  proper  trial  of  such  suit.  When  continued  for 
this  reason,  no  trial  or  other  proceedings  will  be  had  in  the 
cause  until  the  adjournment  of  the  legislature,  nor  within  ten 
days  thereafter.  This  provision  does  not  apply  unless  the  em- 
ployment of  the  counsel,  etc.,  was  before  the  commencement 
of  the  session  of  the  legislature.* 

On  remanding  of  cause  from  supreme  court. — A  party  is 
not  entitled  to  a  continuance,  as  a  matter  of  right,  because 
the  mandate  and  opinion  of  the  supreme  court,  on  remanding 
the  cause,  were  not  filed  ten  days  before  the  term.  He  is  only 
entitled  to  sufficient  time  to  prepare  for  trial." 

Terms. — The  court  may  in  general  impose  any  terms,  on 
granting  a  continuance,  which  the  justice  of  the  case  may  re- 

'  See  Farney  v.  True,  26  111.  185;  Williams  v.  Baker,  67  111.   338;  Ry. 

Roberts  v.  Thompson,  28  111.  80.  Co.  v.  Teeters,  68  111.  144;    Joiner  v. 

^  2  Starr  &  Curtis  1811;  Rev.  Stat.  Drain.  Com.,  17  Bradw.  607;    Har- 

(1895)  1161;  Rev.    Stat.  (1893)   1077;  rigan  v.  Turner,  53  III  App.  292;  C. 

see  Duncan  v,  Niles,  32  111.  541.  P.  S.  Ex.    v.   McLaughrey,    148  111. 

'Rev.  Stat.  (1893)  1077;  Rev.  Stat.  372;    McClory  v.    Crawley,    59   111. 

(1895)  1161;  2  Starr  &  Curtis.  1811;  App.  392;  Ware  v.  City,  158  111.  234. 
see    Stockley    v.    Goodwin,   78    111.  *  Dodge  \.  Deal,  2%  l\\.  303. 

127;  Wicker  v.  Boynton,  83  111.  545; 


724  .       CONTINUANCES. 

quire.  If  the  cause  may  be  tried  at  the  tenn,  the  party  ob- 
taining a  continuance  usually  has  to  pay  the  costs  of  the  term 
— as  in  cases  of  continuance  for  want  of  witnesses;  but  where 
application  is  made  on  account  of  a  failure  to  file  the  declara- 
tion, or  a  copy  of  the  instrument  or  account  sued  on,  the  con- 
tinuance is  (by  the  statute)  at  the  costs  of  the  plaintiff.  "Where 
the  continuance  is  general,  the  costs  will  abide  the  result  of 
the  suit.' 

By  operation  of  law. — It  is  the  general  rule  that  all  causes 
undisposed  of  at  the  end  of  a  term  are  continued  by  operation 
of  law  until  the  next  succeeding  term,  and  that  the  entry  of 
a,n  order  for  continuance  is  not  necessary.* 

J  See  Collins  v.  Tiittle,  24  111.  623.      255;    Foyer  v.  Des  Plaines,  124  lU. 
^  Updike  V.  Armstrong,   3  Scam.      310;  Shannahan  v.  Stevens,  139  111. 
564;   Matson  v.  Swanson,    131   111.      428. 


CHAPTER  XXy. 

JURY. 

Right  of  trial  by. — It  is  declared  hy  the  constitution  of 
Illinois,  that  "  the  right  of  trial  by  jury,  as  heretofore  en- 
joyed, shall  remain  inviolate." ' 

The  provision  in  the  constitution  preserving  the  right  to 
trial  by  jury,  has  no  reference  to  cases  in  which  courts  of 
equity  have  jurisdiction.^ 

Nor  was  it  intended  to  introduce  jury  trials  in  special  sum- 
mary jurisdictions  which  were  unknown  to  the  common  law, 
and  which  do  not  provide  expressly  for  that  mode  of  trial.^ 

Where  jurisdiction  is  bestowed  by  statute  upon  a  court  of 
chancery  in  a  case  where  there  existed  before  the  adop- 
tion of  the  constitution  a  remedy  at  law,  under  which  was 
given  the  right  of  trial  by  jury,  it  is  presumed  such  trial  would 
be  allowed,  if  asked,  on  a  trial  in  chancery,  and  obedience  paid 
to  the  constitutional  provision  giving  such  right.* 

It  is  only  where  the  evidence  is  conflicting  as  to  the  issues 
of  fact  in  a  chancery  suit,  that  it  is  proper  to  submit  such 
issues  to  a  jury.* 

In  the  trial  of  questions  of  facts  in  all  common  law  cases  in 
the  county  court,  either  party  is  entitled  to  a  jury.' 

That  portion  of  section  36  of  chapter  51  of  the  revised 
statutes  of  Illinois,  which  provides  for  the  punishment  in  a 
summary  manner  of  a  person  who  shall  refuse  to  obey  a  sub- 

'  Const.  111.,  Art.  2,  Sec.  5;  see  Ins.  cases  there  cited;  Briggs  v.  Drain. 

Co.  y.  Scammon,12SIU.Q01 ;  Harris  Comm.,  140  111.  53;  Whitehurst  v. 

V.  People.  128  111.  585;  Puterbaugh  v.  Coleen,  53  111.  247;  In  re  Ferrier,  103 

Smith,  131  111.  199.  111.  367;  Holnback  v.  Wilson,  159  111. 


^People  V.  Abbott,  105  111.  588 
Heacock  v.  Hosmer,  109  111.  245 
Flaherty  v.  McCormick,  113  III.  538 


148. 
*  Oage  v.  Eunng,  107  111.  1. 
6  Tillotson  V.  Mitchell,  111  HI.  518. 
CuZrerv.  CoZe/iour,  115  111.  558.  ^Mascall  v.   Drain.  Comm.,   122 

3  Ward  V.  Farwell,  97  111.  614,  and      111.  620. 

■        (725) 


726  JURY. 

poena  to  appear  and  have  his  deposition  taken,  has  been 
declared  to  be  unconstitutional  as  depriving  the  defendant  of 
the  right  of  a  trial  by  jury.' 

Who  are  competent  jurors.  —  The  statute  of  Illinois 
(section  2  of  the  "  act  concerning  jurors," )  requires  that  the 
county  board,  in  selecting  from  the  jury  list  the  persons  who 
may  be  drawn  as  jurors  for  Siny  term,  "  shall  choose  a  propor- 
tionate number  from  the  residents  of  each  town  or  precinct, 
and  shall  take  the  names  of  such  only  as  are :  1.  Inhabitants 
of  the  town  or  precinct,  not  exempt  from  serving  on  juries. 
2.  Of  the  age  of  twenty-one  years  or  upwards,  and  under 
sixty  years  old.  3.  In  the  possession  of  their  natural  facul- 
ties, and  not  infirm  or  decrepit.  4.  Free  from  all  legal  ex- 
ceptions, of  fair  character,  of  approved  integrity,  of  sound 
judgment,  well  informed,  and  who  understand  the  English 
language."  * 

"When  bystanders  are  summoned  to  fill  the  panel  for  a 
pending  trial,  they  are  to  be  persons  having  the  qualifica- 
tions of  jurors." ' 

Who  are  exempt. — "  The  governor,  lieutenant-governor, 
secretary  of  state,  auditor  of  public  accounts,  treasurer,  super- 
intendent of  public  instruction,  attorney-general,  members  of 
the  general  assembly  during  their  term  of  oflSce,  all  judges  of 
courts,  all  clerks  of  courts,  sheriffs,  coroners,  postmasters,  mail 
carriers,  practicing  attorneys,  all  officers  of  the  United  States, 
officiating  ministers  of  the  gospel,  school  teachers  during  the 
terms  of  school,  practicing  physicians,  constant  ferrymen, 
mayors  of  cities,  policemen  and  active  members  of  the  fire 
■department,"  are  in  Illinois  exempt  from  serving  as  jurors." 
And  "  if  a  person  has  served  on  a  jury  in  a  court  of  record 
within  one  3^ear,  he  shall  be  exempt  from  again  serving  during 
such  year,  unless  he  waives  such  exemption."  * 

^Puterbaugh   v.  Smith,   131    111.  *  2  Starr  &  Curtis  1418;  Rev.  Stat. 

199.  (1893)  892;  Rev.  Stat.  (1895)  942;  see 

^  2  Starr  &  Curtis  1417;  Rev.  Stat.  Bragg  v.  People,  78  111.  328;  Appeal 

(1893)  892;  Rev.  Stat.  (1895)  942;  see  of  Scranton,  74  111.  161. 

In  re  Scranton,  74  111,  161;  Backrice  "2  Starr  &  Curtis  1422;  Rev.  Stat, 

V.  People,  110  111.  29.  (1893)  894;  Rev.  Stat.  (1895)  944. 

3  2  Starr  &  Curtis  1421;  Rev.  Stat. 
(1893)  894;  Rev,  Stat.  (1895)  944. 


'     JURY.  727 

Challenges  of  jurors. — Challenges  are  of  two  principal 
kinds:  namely,  challenges  to  the  array,  and  challenges  to  the  -polls. 

Challenges  to  the  array. — A  challenge  to  the  array  is 
made  on  account  of  some  defect  in  executing  the  'centre,  and 
is  at  once  an  objection  to  all  the  jurors  in  the  panel.  It  is 
either  a  principal  challenge,  that  is,  one  founded  on  some 
manifest  partialit}'-,  or  error  committed  in  selecting,  draw- 
ing or  summoning  the  jurors,  by  not  pursuing  the  directions 
of  the  acts  of  the  legislature;  or  it  is  a  challenge  for  favor.' 

In  Illinois,  under  the  system  established  by  the  statute  of 
selecting  a  certain  number  of  persons  to  serve  as  jurors  for 
each  week  of  the  term,  it  is  presumed  there  will  seldom  be 
occasion  for  a  challenge  to  the  regular  panel.'  But  where  the 
sheriff  summons  talesmen,  after  the  regular  panel  is  exhausted, 
the  common  law  objections  may  no  doubt  be  made  available. 

A  mere  irregularity  in  drawing  a  jury  is  not  sufficient  caus& 
to  sustain  a  challenge  to  the  array,  unless  the  irregularity 
complained  of  is  of  such  a  character  as  would  probably  have 
produced  a  change  in  the  panel  or  presented  a  list  of  names  to 
choose  from,  different  from  those  which  would  be  produced  by 
a  compliance  with  the  law,^  and  that  a  positive  injury  would 
result  in  consequence  of  the  refusal  of  the  court  to  quash  the 
panel.* 

Objections  to  any  irregularity  in  the  impaneling  of  a  petit 
jury  can  not  be  interposed  for  the  first  time  on  error/ 

Among  the  causes  for  challenge  to  the  array  are  the  follow- 
ing, viz. :  That  the  sheriff  or  officer  who  makes  the  array  is  of 
kindred  or  affinity  to  either  party,  within  the  ninth  deo-ree;  if 
one  or  more  of  the  jury  are  returned  at  the  request  of  either 
party;  that  an  action  implying  malice  is  pending  in  the  suit 
of  either  party  against  the  officer,  or  at  suit  of  the  officer 
against  either  party;  that  an  action  of  debt  is  pending  at  the 

iBouv.  L,  D.  217;    see  Stone  v.  TFiV/teZm  v.  PeopZe,  72  111.  468;  i2.  i2. 

People,    2    Scam.    326;    Lincoln    v.  Co.  v.  Wheeler,   72  111.    538;  3Iapes 

Stowell,  73  III.  246;  Ins.  Co.  v.  Nel-  v.  People,  69  111.  523. 

son,  75  111.    548;  Siebert  v.    People,  ^  Nealon  v.    People,  39  111.   App. 

143  111.  571;    Clears  v.    Stanley,   34  481. 

Ill,  App.  338.  *  People  v.  Madison  Co.,  125  III. 

''See  Murphy   v.   People,   37  111;  334. 

447;  Stone  v.  People,  2  Scam.   326;  *  Schinner  v.  People,  33  III.  276. 


72S  JURY. 

suit  of  either  party  against  the  oiWcer;  but  not  if  by  the  oflBcer 
against  either  party;  that  the  otficer  is  under  the  distress  of 
eitlier  party;  that  the  officer  is  counsel,  attorney  or  servant 
of  either  party,  or  is  an  arbitrator  in  the  same  matter,  and 
has  treated  thereof.' 

The  causes  of  challenge  to  the  array  for  favor,  are  such  as 
imply,  at  least,  a  probability  of  bias  and  partiality  in  the 
officer,  but  do  not  amount  to  a  principal  challenge;  thus,  Jiat 
the  plaintiff  or  defendant  is  the  tenant  of  the  officer,  or  that 
the  son  of  the  officer  has  married  the  daughter  of  the  plaint- 
iff or  defendant.' 

An  objection  to  the  mode  of  summoning  a  grand  jury  or 
petit  jury,  should  be  made  by  a  challenge  to  the  array,  or  by  mo- 
tion to  quash  the  indictment,  etc.,  founded  upon  an  affidavit 
of  some  irregularity.  Advantage  can  not  be  taken  of  such 
irregularity  on  a  motion  for  a  new  trial.' 

Challenges  to  the  polls. — Challenges  to  the  polls  are  ex- 
ceptions made  separately  to  each  juror,  before  he  is  sworn. 
These  may  be  divided,  under  the  practice  of  Illinois,  into  two 
kinds — challenges  for  cause,  and  peremjyfoty  cTiallcnfjes. 

Challenges  for  cause. — It  is  a  good  cause  for  challenge  that 
a  juror  is  an  alien; '  or  an  infant;  or  noyi  compos',  or  that  he 
has  not  the  requisite  understanding  or  character;  or  that  he  is 
of  kin  to  either  party  within  the  ninth  degree;  ^  or  that  the 
juror  is  interested;  ^  or  has  formed  and  expressed  an  opinion 
of  the  controversy,'  or  upon  any  one  principal  point  in  the 
case;*  but  not  when  he  merely  expresses  a  conditional  opinion." 

'  WatMns  v.  Weaver,   10  Johns.  4  Scam.  556;  ilfacHn  v.  People,  115 

107;    Foot  V.   Morgan,  1  Hill    654;  111.  312. 

Cain  V.  Ingham,  7  Cow.  479,  note  a.  « 1  Bay  229;  People  v.  Hall,  2 Tyler 

2  Co.  Lit.   156;  Hanna  v.   People,  401. 

86  111.  243.  '  ?ee  R.  R.    Co.  v.   Acller,   56   111. 

^ Stone  V.  People,  2  Scam.  326;  see  344;  Hughes  v.  People,  116  111.  330; 

Schirmer    v.   People,    33    III.    276;  Meaux  v.  Whitehall,  8  Bradw.  173; 

Beasley  v.  Peoj^le,  89  111.  571;  R.  R.  Ins.  Co.  v.  Ward,  90  111.  545;  R.  R. 

Co.  V.  Casner,  72  111.  384;  see  Mul-  Co.  v.  Perkins,  125  111,  127, 

ler  V.  Rebham,  94  111.  142.  « Burr's  Trial  418;  Davis  v.  Walker, 

^Davison  v.    People,  90  111.   221;  60  111.452. 

Cliase  V.  People,  40  111.    352;  Guy-  ^  Durell  v.  3Iosher,  8  Johns.  445; 

koirski/v.  People,  1  Scam. ilQ;  Stone  Oradle    v.    Hoffman,    105    111.    147; 

V.  People,  2  Scam.  326.  Richmond  v.  Roberts,  98  111.  473. 

°  Finch  401;  Thomas  v.  Leonard, 


JURY.  729 

A  porson  over  sixty  years  of  age  is  exempt  from  jury  service 
bat  his  age  does  not  disqualify  him/ 

A  court  has  a  right  to  discharge  a  juror  already  sworn 
whenever  it  comes  to  its  knowledge  that  he  ought  not  to  sit.'' 

By  the  statute  of  Illinois,  it  is  a  sufficient  cause  for  challenge 
of  a  juror,  that  he  lacks  any  one  of  the  qualifications  mentioned 
in  the  second  section,  above  quoted,  of  that  statute;  or,  if  he 
is  not  one  of  the  regular  panel,  that  he  has  served  as  a  juror 
on  the  trial  of  a  cause  in  any  court  of  record  in  the  county, 
within  one  year  before  the  time  he  is  offered  as  a  juror,  or  that 
he  is  a  party  to  a  suit  pending  for  trial  at  the  same  term,^ 

The  law  in  relation  to  the  disqualification  of  jurors,  from 
having  formed  opinions,  is  very  fully  discussed  in  the  case  of 
Smith  V.  Eames,  3  Scam.  R.  77,  where  the  court  says,  that  if  a 
juror  has  made  up  a  decided  opinion  on  the  merits  of  the  case, 
either  from  a  personal  knowledge  of  the  facts,  from  the  state- 
ments of  witnesses,  from  the  relations  of  the  parties,  or  either 
of  them,  or  from  rumor,  and  that  opinion  is  positive,  and  not 
hypothetical,  and  such  as  will  probably  prevent  him  from  giv^- 
ing  an  impartial  verdict,  the  challenge  should  be  allowed.  If 
the  opinion  is  merely  of  a  light  and  transient  character,  such 
as  is  usually  formed  by  persons  in  every  community  upon  hear- 
ing a  current  report,  and  may  be  changed  by  the  relation  of 
the  next  person  met  with  — not  a  fixed  conclusion  and  convic- 
tion of  the  mind — or  if  it  is  hypothetical,  the  challenge  ought 
not  to  be  allowed;  and  to  ascertain  the  state  of  the  mind  of  a 
juror,  a  full  examination,  if  deemed  necessary,  may  be  permit- 
ted. The  principles  enunciated  in  this  case  have  u.iiformly 
been  adhered  to  by  the  courts  of  this  state.* 

The  law  gives  the  right  to  a  peremptory  challenge  of  jurors, 
to  be  exercised  in  the  discretion  of  the  party  entitled,  and  the 
courts  are  not  authorized  to  limit  or  restrict  the  right,  or  pre- 
scribe rules  which  shall  render  it  unavailing.     Such  reasonable 

^  Davis  y.  People,  19  III.  73.  83;  Sellers  v.  People,  3  Scam.   415; 

2  r/iomas  V.  Leonard,  4  Scam.  557;  Vennum  v.  Hanvood,  \   Gilm.  659; 

Stone  V.  People,  2  Scam.  336.  Baxter  v.  People,  SGilm.  368;  Neeley 

8  2  Starr  &  Curtis,  1422;  Rev.  Stat.  x.  People,  13  III.  687;    Thomson  v. 

(1893),  894;  Rev.    Stat.  (1895),    944;  People,  24  111.  60;    Graij  v.   People, 

R.  R.  Co.  v.Aldrich,  134  111.  9.  26  111.  344;  Collins  v.  PeojJle,  48  111. 

*  See  Gardner  v.  People,  3  Scam. 


730  JURY. 

examination  by  counsel  should  always  be  allowed  as  will  enable 
the  court  to  see  that  the  jurors  stand  indifferently  between  the 
parties,  and  are  possessed  of  the  requisite  qualifications,  and 
also  to  enable  the  counsel  to  challenge  for  cause,  if  it  exists,  or 
to  exercise  the  right  of  peremptory  challenge  when  in  their 
judgment  it  is  deemed  necessary  or  advisable.' 

The  court  may  also  examine  the  jurors,  if  he  sees  fit  to  do 
so;  and  if  not  otherwise  satisfied  of  their  competency  or  impar- 
tiality, should  always  make  such  examination  as  will  satisfy 
him  thereof.^ 

It  is  proper  upon  the  examination  of  a  juror  that  he  should 
be  informed  of  the  rule  of  law  governing  the  application  of  a 
question  asked;  and  if  the  same  is  asked  to  puzzle  or  trap  him 
into  disqualifying  himself  as  a  juror,  it  should  not  be  allowed. 
When  it  appears  from  the  examination  of  a  juror  that  he  has 
neither  formed  nor  expressed  an  opinion,  and  has  no  prejudice 
or  bias  against  either  of  the  parties  for  any  cause  whatever, 
and  can  sit  impartially  and  decide  the  issue  involved  in  the  case 
according  to  the  evidence,  such  a  person  is  a  competent  juror/ 

The  denial  of  permission,  on  the  preliminary  examination  of 
jurors,  to  obtain  from  them,  by  means  of  hypothetical  ques- 
tions that  call  for  the  decision  of  a  question  of  law,  a  pre-judg- 
ment of  the  case,  and  a  statement  in  favor  of  w^hich  party  they 
would  decide  on  a  supposed  state  of  evidence,  is  not  error.* 

It  is  proper,  on  examination  of  a  juror  touching  his  qualifir 
cations,  to  ask  him  which  way  he  will  decide  in  case  the 
evidence  is  equally  balanced  in  a  suit  between  a  railroad 
company  and  an  individual." 

A  juror  may  be  examined  on  his  voir  dire,  as  to  such 
grounds  of  challenge  only  as  are  not  to  his  discredit  or  dis- 
honor; and  the  court,  on  motion  of  either  party  in  a  suit,  will 
put  any  juror  upon  his  oath,  to  answer  whether  he  is  in  any 

145;  Leac/iv.PeopZe,  53  111.  311;  Car-  *  R.  R.  Co.   v.  Acller,   56  111.  344; 

row  V.  People,  113  111.  550;  Wilson  R.  R.  Co.  v.  Buttolf,  66  111.  347;  R. 

V.  People,  94  111.  299.  R.  Co.  v.  Haslam,  73  111.  494;  R.  R. 

^Do7iovan  v.  People,  139   111.  412;  Co.  v.  Fisher,  141  111.  614. 

City  V.  Seibert,  47  111.  App.  477.  '  R.  R.  Co.  v.  Haslam,  73  111.  494; 

^Donovan  v.  Peoi^le.  139  III.    412.  see  R.  R.  Co.  v.  Adler,  56   111.  347; 

*i2,  R.  Co.  V.  Fislier,  38  111.  App.  see   also  the    case  of    Coughlin  v. 

33,  People,  144  111.  140,  in  which  the  ques* 


JUKT.  731 

way  related  to  either  party,  or  has  formed  and  expressed  an 
opinion  in  regard  to  the  merits  of  the  controversy,  or  has  any 
particular  interest  or  prejudice  in  the  cause,  or  any  other  ques- 
tion concerning  his  competency.  A  party  ought  not  to  be 
forced  to  encounter  a  pre-existing  opinion,  deliberately  formed, 
which  the  juror  believes  to  be  true,  and  which  the  party 
would  be  obliged  to  overcome.^ 

The  prejudice  of  a  juror  against  a  person  not  a  party  to  the 
suit,  can  form  no  objection  to  his  competency.' 

It  is  a  good  cause  of  challenge  that  a  juror  (not  of  the 
regular  panel)  has  served  on  a  petit  jury  within  twelve 
months.' 

If  a  challenge  or  exception  to  a  juror  is  not  made  at  the 
time  of  impaneling,  it  can  not  be  made  afterwards;  yet,  if  the 
court  improperly  overrules  a  challenge,  the  party  challenging 
is  not  precluded,  by  proceeding  in  the  trial,  from  availing  him- 
self of  the  objection  on  a  motion  to  set  aside  the  verdict.*  And 
where  a  juror  was  asked,  before  being  sworn  as  a  juror,  whether 
he  had  made  up  an  opinion  upon  the  case,  and  he  said  no,  but 
it  was  afterwards  ascertained  that  he  had  formed  and  expressed 
an  opinion  upon  the  case  before  trial,  the  court  gave  the  party 
a  new  trial.* 

Peremptory  challenges.  —  Peremptory  challenges  are 
those  which  are  made  without  assigning  any  reason,  and 
which  the  court  must  allow.  In  all  civil  actions,  in  Illinois, 
each  party  is  entitled  to  a  challenge  of  three  jurors  without 
showing  cause  for  such  challenge; '  and  every  person  arraigned 
for  any  crime  punishable  with  death,  is  admitted  on  his  trial 

tion  of    competency    of    jurors    is  (1893),   894;  Eev.    Stat.    (1895),    944; 

fully   discussed    in    an    exhaustive  see    Bissell    v.   Ryan,  23  111.    566; 

opinion.  Brooks  v.  Bruyn,  35  111.  392;  Aviick 

'  Gray  v.  People,  26111.  344;  Plum-  v.  Young,  69  111.  542. 

werv.  People,  74  111.  361;  see  iJ.  i2.  *  Blake  v.   Millspaugh,   1  Johns. 

Co.  T.  Adler,  56  111.  344.  316. 

^Strawn  v.    Cogsivell,  28  111.  457;  *  Vennum  v.   Harwood,   1   Gilm. 

see  Albreeht  v.    Walker,  73  111.  69;  659;  see  Fitzpatrick  v.  Joliet,  87  111. 

Kroerv.  People,lSl\l.  294;  Robinson  58. 

V.  Randall,  82  111.  521;  Robinson  v.  «2  Starr  &  Curtis,  1812;  Rev.  Stat. 

Randall,  82  111.  521.  (1893)  1070;  Rev.  Stat.  (1895)  1161. 

3  2  Starr  &  Curtis  1422;  Rev.  Stat. 


732  JURY. 

to  a  peremptory  challenge  of  twenty  jurors,  and  no  more;  and 
every  person  arraigned  for  any  offense  that  may  be  punished 
by  imprisonment  for  a  term  exceeding  eighteen  months,  to  a 
peremptory  cha  bnge  of  ten  jurors;  and  in  all  other  criminal 
trials  the  defendant  is  allowed  a  peremptory  challenge  of  six 
jurors.  The  attorney  prosecuting  on  behalf  of  the  People  is 
admitted  to  a  peremptory  challenge  of  the  same  number.' 

Under  the  statute,  in  a  case  where  several  persons  are 
jointly  indicted  and  put  upon  trial,  each  being  entitled  to 
twenty  peremptory  challenges,  the  prosecution  is  entitled  to 
a  number  equal  to  the  aggregate  of  those  accorded  to  all  the 
defendants." 

Under  our  statute  requiring  "  that  the  jury  shall  be  passed 
upon  and  accepted  in  panels  of  four,  by  the  parties,  commenc- 
ing with  the  plaintiff,"  after  a  panel  of  four  jurors  has  been 
passed  upon  and  accepted  by  both  parties,  and  another  panel 
is  called,  a  party  having  peremptory  challenges  will  not  have 
the  rio-ht  to  go  back  and  challenge  any  one  of  the  jurors  so 
accepted,  although  they  have  not  been  sworn.  Whatever  may 
have  been  the  rule  at  common  law,  as  to  the  exercise  of  the 
rio-ht  of  peremptory  challenge  at  any  time  before  the  jury  is 
sworn,  under  our  statute  the  right  of  peremptory  challenge 
is  cut  off  with  respect  to  any  one  of  a  panel  of  four  jurors 
which  has  been  passed  upon  and  accepted  by  both  parties.* 

Polling  the  jury. — To  poll  a  jury  is  to  require  that  each 
juror  shall  himself  declare  what  is  his  verdict. 

A  party  has  the  right  to  have  the  jury  polled  on  the  receipt 
of  the  verdict,  whether  it  is  brought  in  sealed,  or  delivered 
orally  by  the  foreman.  This  right,  however,  must  be  exer- 
cised before  the  jury  is  discharged.*  After  a  verdict  is  re- 
ceived, and  the  jury  discharged,  the  control  of  the  jury  over 
the  case  is  at  an  end,  and  the  jurors  can  not  be  recalled  to  alter 
or  amend  the  verdict.* 

•  2  Starr  &  Code,  1812;  Rev.  Stat.  son  v.  Howe,  2  Gilm.  342;  Martin  v. 

(1893)  1070;  Rev.  Stat.  (1895)  1161.  Morelock,  32  111.  485;  R.  R.  Co.  v. 

^Spies  V.  People,  122  111.  1.  Faitz,  19  Bradw.  85;    see  Drda  v. 

^Mayers  v.  Smith,  121  111.  442;  see  Schmidt,  47  111.  App.  267. 

Belt  V.  Peo2)le,  97  111.  461;  R.  R.  Co.  '' Rigg  v.   Cook,  4  Gilm.  336;  see 

V.  Prickett,  52  111.  App.  222.  Wilcoxson  v.  RobTj,  3  Gilm.  475. 


Rigg  v.  Cook,  4  Gilm.  336;  John- 


CHAPTEE  XXYI. 

AEREST  OF  JUDGMENT. 

When  there  is  some  intrinsic  defect  apparent  on  the  face  of 
the  record  which  would  render  a  judgment  in  the  cause  erro- 
neous, the  court  will,  on  motion,  arrest  the  judgment."  The 
objection  must,  however,  be  one  of  substance.  All  formal  ob- 
jections are  cured  by  the  statute  of  amendments  and  jeofails. 
Formerly,  judgments  were  constantly  arrested  for  matters  of 
mere  form,  but  this  abuse  has  long  since  been  remedied. '^ 

The  general  common  law  rule  is,  that  when  a  declaration  is 
so  defective  that  it  will  not  sustain  a  judgment,  the  objection 
may  be  availed  of  on  motion  in  arrest  in  the  trial  court,  or  on 
error  or  appeal.^ 

After  the  overruling  of  a  demurrer  to  the  declaration,  a  mo- 
tion in  arrest  of  judgment,  for  a  defect  in  the  declaration, 
ouffht  not  to  be  entertained,"  It  is  otherwise  on  a  default,  in 
which  case  judgment  may  be  arrested  for  any  substantial  de- 
fect in  the  declaration.^ 

A  defendant  can  not  have  an  arrest  of  judgment  for  any- 

'  And.  Stephen  PI.  185:    Collins  v.  111.  528;  Bowmanv.  People,  114  111. 

Robinson,  2  Scam.  509;    Haynes  v.  474. 

Ziicas,  50111.  436;  see  Coofce  V.  OrTie,  *  Rouse    v.  Peoria,   2    Gilm.    99; 

37  111.   186;  Jones  v.  People.  53  111.  Echcards  v.  Blunt.  1  Stra.  425;  Cres- 

366;    Culver  v.    Bank,  64  111.    528;  icell  v.  Packham,Q  Taunt.  Gm-,  Cres- 

Com.  Ins.  Co.  v.  Bank,  61  111.  482;  well  v.  Packham,  2  Marsh.  326;  Coal 

McGill  V.  Rothger,  45  111.  App.  511.  Co.  v.  Hood,  77  lU.  68;  R.  R.  Co. 

2  See  And.  Steph.   PL  185;  Nelson  v.  Hines,   132  111.  161;  Coal  Co.  v. 

V.  Borchenius,  52  111.  236;  Shepherd  Glass,  34  111.  App.  364;  Shreffler  v. 

V.  Field,  70  111.  438;    Stone  Co.   v.  Nadelhoffer,  133  111.  536;  R.  R.  Co. 

Wtuilen,  151  111.  472.  v.  Sampson,  31  111.  App.  513;  Mut. 

»JK.  R.  Co.  V.  Hines,  132  111.  161;  Aid  v.  Paine,  122  111.  625. 
Wilson  V.  3Iayrick,  26  111.  35;  Scho-  *  Wright  v.  Bennett,  3  Scam.  258; 

field  V.  Settley,  31  111.  515;  Haynes  v.  Edwards  v.  Blunt,  1  Stra.  425;  Jenk- 

Lucas.  50  111.  436;  Kijjp  v.  Lichten-  ins  v.  President,  1  Cain  86;   Bragg 

stein,  79  III  358;  Culver  v.  Bank,  64  v.  City,  73  111.  152, 

(733) 


734  ARREST   OF    JUDGMENT. 

thing  he  might  have  pleaded  in  abatement; '  as  for  instance, 
an  irreirularitv  in  the  service  of  a  writ,  or  the  want  of  an  in- 
dorser  of  the  writ,'  or  because  the  writ  bears  teste  of  a  justice 
who  is  a  party  to  the  suit.^ 

According  to  the  strict  rules  of  practice  a  motion  in  arrest 
of  judgment  is  a  waiver  of  a  motion  for  a  new  trial.  A  party 
who  has  made  both  motions,  and  calls  up  his  motion  in  ar- 
rest, and  has  it  disposed  of,  and  then  allows  judgment  to  be 
rendered,  without  directing  the  attention  of  the  court  to  his 
motion  for  a  new  trial,  will  be  held  to  have  waived  the  latter." 

Before  verdict  the  intendments  are  against  the  pleader,  and 
upon  demurrer  to  a  declaration  nothing  will  suffice,  by  way  of 
inference  or  implication,  in  his  favor.  But  on  motion  in  arrest 
of  judgment  the  court  will  intend  that  every  material  fact 
alleo-ed  in  the  declaration,  or  fairly  and  reasonably  inferable 
from  what  is  alleged,  was  proved  at  the  trial;  and  if,  from  the 
issue,  the  fact  omitted  and  fairly  inferable  from  the  facts 
stated  in  the  declaration  may  fairly  be  presumed  to  have  been 
proved,  the  judgment  will  not  be  arrested.' 

"Where  unnecessary  allegations  are  made  in  a  declaration, 
which  are  irrelevant,  they  will  be  rejected  as  surplusage. 
After  a  general  verdict,  judgment  will  not  be  arrested  because 
of  such  faulty  allegations.' 

Where  there  are  several  counts  in  a  declaration,  and  some  of 
them  are  bad,  upon  a  general  verdict,  judgment  will  be  ar- 
rested.' The  verdict,  however,  may  be  amended  by  the  judge's 
notes,  so  as  to  apply  to  the  good  count;  and  it  is  not  too  late, 
on  the  motion  in  arrest  of  judgment,  for  the  plaintiff  to  move 
for  such  amendment.'     In  Illinois  it  is  provided  by  statute, 

'2  Tidd's  Pr.  819.  '  Benson\.  Swift,  2  Mass.  50;  Aus- 

^Oilberf.    v.    Bank,   5    Mass.    97;  tiriY.  Walsh,  2  Mass .  40Q;  Barnard 

Colby  V.  Dillingham,  7   Mass.  475;  v.  Whiting,  TMass.  358;  Sxdlivanv. 

Gagev.  Graff  am,  11  Mass.  181.  Holker,  15  Mass.  374;  White  v.  Snell, 

^Prescott  V.  Tufts,  7  Mass.  209.  9  Pick.  456;  Maxfield  v.  Johnston,  2 

*Hall  V.  Nees,  27  111.  411.  Ohio  204;  see  Bardill  v.  Trustees,  4 

5  Penna.  Co.  v.  Ellett,  132  III.  654.  Bradw.  94. 


«  Burnap  v.    Wright,  14  111.  301 
see  Tucker  v.   Randall,  2  Mass.  283 
Steele    v.    President,  2  Johns.  288 
Compton    V.    People,  86  111.  176;  1 
Chit.  PI.  209-211. 


8  j\forris  v.  Dunham,  9  Cow.  151; 
Livingston  v.  Tremjjer,  11  Johns. 
100;  Stafford  v.  Green,  1  Johns.  506. 


ARREST     OF   JUDGMENT.  735 

that  "  whenever  an  entire  verdict  shall  be  given  on  several 
counts  the  same  shall  not  be  set  aside  or  reversed  on  the 
ground  of  any  defective  count,  if  one  or  more  of  the  counts  in 
the  declaration  be  sufficient  to  sustain  the  verdict; "  '  and  it  is 
held  that  when  there  is  a  good  count  in  the  declaration  to  sup- 
port the  judgment,  a  motion  in  arrest  can  not  prevail.* 

In  an  action  of  replevin,  where  several  pleas  are  pleaded, 
laying  the  property  in  different  persons,  a  general  verdict  for 
the  defendant,  on  all  the  pleas,  is  bad,  and  judgment  will  be 
arrested.*  If  an  action,  local  in  its  nature,  is  brought  in  a 
wrong  county,  *  or  if  case  is  brought  when  the  action  should 
be  trespass,^  judgment  may  be  arrested.  If  there  is  a  misjoin- 
der of  counts,  the  declaration  will  be  bad  on  a  motion  in  arrest; 
but  if  a  count  is  stricken  out  by  leave  of  the  court,  it  will  be 
considered  as  if  never  inserted.^ 

The  statute  of  Illinois  provides  that  "  when  judgment  shall 
be  arrested  for  any  defect  in  the  record  of  proceedings  after 
the  first  process,  the  plaintiff  shall  not  be  compelled  to  commence 
his  action  anew;  but  the  court  shall  order  new  pleadings  to 
commence  with  the  error  that  caused  the  arrest." '  Where 
damages  are  assessed  upon  a  count  in  which  entire  damao-es 
are  claimed  from  both  actionable  and  non-actionable  causes 
joined,  judgment  should  be  arrested,** 

Judgment  will  not  be  arrested  on  motion  of  the  plaintiff,  on 
the  ground  that  certain  special  pleas  present  immaterial  issues 
if  the  general  issue  has  also  been  filed,  and  the  finding  of  the 
jury  is  general,  in  favor  of  the  defendant.' 

1  2  Starr  &  Curtis  1822;  Rev.  Stat.  »  Cose  v .  Mark,  2  Ohio  169. 

(1893)  1078;   Rev.    Stat.  (1895)  1162;  « Preseutt  v.   Tufts,   4  Mass.    146; 

Bond  V.    Dustin,    112    U.    S.    604;  see  1  Chit.  PI.  187-188;    Bardill  v. 

Snyder  v.  Gaither,  3  Scam.  91;  By.  Trustees,  4  Bradw.  94. 

Co.   V.  Doherty,   53    111.   App.  282;  '2    Starr    &    Curtis,    1822;    Rev, 

Shrefflerx.  Nadelhoffer,  133  111.  536.  Stat,  (1893)   1079;    Rev,    Stat,  (1895) 

■^  Bradshaw  v.  Hubbard,  1  Gilm.  1163. 

390;  North  v,    Kizer,    72    111,    172;  s  Chittick  v.  Tovm,  43    111.  App. 

Shreffler  v,  Nadelhoffer,  133  111,  536;  632, 

Stone  V.    Wlialen,  51  111.  App.  512;  ^  Biederman  v,  O'Connor,  117  111, 

Gebbie  v,  Mooney,  121  111,  255,  493;   Rothschild  v.  Bruscke,  132  111. 

» Hewson  v.  Saffln,  7  Ohio,  232.  265. 

*  Robinson  v.  Mead,  7  Mass.  353. 


736  AKREST    OF    JUDGMENT. 

Time  and  manner  of  moving  in  arrest. — A  motion  in  ar- 
rest of  judgment  is  made  after  verdict,  or  default,  and  before 
judgment  rendered.'  The  motion  should  be  in  writing,  and 
the  statute  of  Illinois  provides  that  the  party  moving  "  shall 
before  final  judgment  be  entered,  or  during  the  term  it  is  en- 
tered, by  himself  or  counsel,  file  the  points  in  writing,  partic- 
ularly specifying  the  grounds  of  such  motion." ' 

See  New  Trials,  page  785  ;post, 

'  Raney  v.  McRae,    14    Ga.   589;  (Conn.  )  473;  Artarpe  v.  Broker,  74 

Craig  v.  Craig,  6  J.  J.  Marsh.  (Ky.)  Ga.  462;    Bayard    v.     Malcolm,    1 

ni:  Hansher  v.  Hansher,  94  Ind.  Johns.  310. 

208;   Keller  v.  Stevens,  66  Ind.  132;  ^  2  Starr  <fe  Curtis,  1818;  Rev.  Stat, 

see  Shelley  v.  Woodbridge,  2  Root  1893)  1078;  Rev.  Stat.  (1895)  1162. 


CHAPTER  XXYII. 


BILLS  OF  EXCEPTIONS. 


When  in  the  course  of  the  trial  of  a  cause,  the  judge,  either 
in  deciding  an  interlocutory  question,  or  in  his  charge  to  the 
jury,  mistakes  the  law,  or  is  supposed  to  have  mistaken  the 
law,  the  counsel  against  whom  the  decision  is  made  may  ten- 
der an  exception  to  the  opinion  of  the  court,  and  require  the 
judge  to  sign  and  seal  a  bill  of  exception/ 

In  Illinois,  it  is  provided  by  the  Practice  Act,  that  "if,  durino- 
the  progress  of  any  trial  in  any  civil  cause,  either  party  shall 
allege  an  exception  to  the  opinion  of  the  court,  and  reduce  the 
same  to  writing,  it  shall  be  the  duty  of  the  judge  to  allow  the 
said  exception,  and  sign  and  seal  the  same;  and  the  said  excep- 
tion shall  thereupon  become  a  part  of  the  record  of  such 
cause."  '  Under  this  provision,  it  is  said  a  bill  of  exceptions 
is  not  to  be  considered  as  a  writing  of  the  judge,  but  as  a 
pleading  of  the  party  alleging  the  exceptions,  and  is  to  be  con- 
strued most  strongly  against  him.' 

The  same  act  also  provides  that  "exceptions  taken  to 
decisions  of  the  court,  overruling  motions  in  arrest  of  judo-- 
ment,  motions  for  new  trials,  motions  to  amend,  and  for  con- 
tinuances of  causes,  shall  be  allowed;  and  the  party  exceptino- 

iSee  3  Bl.  Com.   372;  Jackson  v.  816;  Hermann  v.  Pardridge,  79  111, 

CaldiveU,  1   Cow.  622;  Douglass  v.  471;  Gardner  v.  Bussell,  78  111.  292 

McAllister,  3  Cranch  298;   Vasse  v.  Wickencamp  v.  TT  ickencamp,  77  111 

Smith,  6  Cranch  256;  Zimmermann  92;  Vanscoyoc  v.  Kimler,  77  111.  151 

V.  Cowan,  107  111.  631.  McEliwee  v.    People,    11    111.    493 

« 2  Starr  &  Curtis,  1822;  Rev.  Stat  Coggshall  v.    Beesley,   76    111.    445 

(1893)   1079;  Rev.  Stat.  (1895)  1163;  Cu/Zmer  v.  Aas/i,  76111.  515. 

Stack  v.  People,  80  111.  32;  Bill  v.  a  Rogers  v.  Hall,  3  Scam.  5;  see 

Mumford,  80111.  82;  At^is  v.  Atijield,  James  v.  Dexter,  118  111.  654;  Gra- 

79  111.  257;  Davis  v.  Bradley,  79  111.  ham  v.  People,  115  111.  566. 

47  (737) 


738  BILLS     OF   EXCEPTIONS. 

may  assign  for  error  any  decision  so  excepted  to." '  Excep- 
tions to  the  granting  of  such  motions  are  not  allowed.'' 

Where  a  cause  is  tried  by  the  court,  without  a  jury,  the 
same  statute  provides  that  exceptions  may  be  taken  to  the 
decisions  of  the  court,  and  the  party  excepting  may  assign  for 
error  any  decision  so  excepted  to,  "  whether  such  exception 
relates  to  receiving  improper,  or  rejecting  proper  testimony, 
or  to  the  final  judgment  of  the  court  upon  the  law  and  evi- 
dence." ^ 

Where  the  bill  of  exceptions  fails  to  set  out  the  findings  and 
judgment  of  the  court  on  a  trial  without  a  jury,  and  to  show 
they  were  properly  excepted  to,  no  questions  arising  upon  such 
findings  and  judgment  can  be  considered  by  the  appellate 
court;  *  and  where  no  propositions  of  law  are  submitted,  it 
will  be  assumed  that  the  court  ruled  the  law  correctly." 

It  is  also  provided  by  the  same  statute,  that  "  exceptions 
taken  to  decisions  of  any  court  in  this  state,  overruling  motions 
in  arrest  of  judgment,  for  new  trials,  or  for  continuances,  or 
change  of  venue,  shall  be  allowed  in  criminal  cases,  and  in 
penal  and  q^id  tarn  actions;  and  the  part}^  excepting  to  such 
decisions  may  assign  the  same  for  error,  in  the  same  manner 
as  in  civil  cases."  ' 

In  regard  to  applications  for  changes  of  venue,  in  Illinois, 
the  court  has,  by  another  statute,  a  discretion  to  grant  or  re- 
fuse such  applications  in  criminal  causes,  where  the  offense  is 
not  punishable  with  death; '  but  in  civil  causes  it  is  otherwise, 
and  a  refusal  to  grant  such  an  application  may  be  assigned  for 
error.* 

'  McKenzie  v.  Penfield,  87  111.  38;  v.  LeMoyne,  127  III.  258;    Dinsmore 

Grundies  v.    Martin,    90    111.    553:  v.  Woodburn,  56  111.  App.  225. 

Stem  V.  People,  96  111.  475.  *  Bank  v.  LeMoyne,  127  111.  253; 

2  Brookbank  v.  Smith,  2  Scam.  78;  People  v.  3IeCoy,  132  111.  138. 

Brooks  V.    McKinney.  4  Scam.  309;  *2  Starr  &  Curtis  2456;  Rev,  Stat. 

Martin  V.  Chambers,  8i  III.  519.  (1893)   1079;   Rev.  Stat.  (1895)  1163; 

^2  Starr  &  Curtis  1826:  Rev.  Stat.  French  v.  Peo2)le,  77  111.  531;  Stack 

(1893)  1079;    Rev.  Stat.  (1895)  1163;  v.  People,  80  111.  32. 

Farwell  v.  Shove,  105  111.  %\;  R.  R.  '2  Starr  &  Curtis  2456;  Rev.  Stat. 

Co.   V.    Lake    View,    105    111.    207;  (1893)  1471;  Rev.  Stat.  (1895)  1573. 

People  V.  McCoy,  132  111.  138;  Gould  "  Walsh  v.  Ray,  38  111.   30;    Ens- 

V.  Howe,  127  III.  252.  minger  v.  People,  47  111.  384. 

*  Gould  V.  Howe,  127  lU,  253;  Bank 
\ 


BILLS    OF    EXCEPTIONS.  739 

When  exceptions  must  be  taken— Signing  and  sealing 
of  bill,  etc. — A  party,  to  avail  himself  of  an  exception  to  a 
decision  of  the  court,  must  except  at  the  time  the  decision 
is  made,  and  the  bill  must  affirmatively  show  that  the  excep- 
tion was  taken  at  that  time; '  or  if  the  exception  is  to  the 
charge  of  the  court,  it  must  be  taken  before  the  verdict  is  ren- 
dered.' In  practice,  however,  the  exception  is  merely  noted 
at  the  time,  and  the  bill  is  afterwards  settled." 

Where  a  bill  of  exceptions  was  filed  two  days  after  judg- 
ment, and  at  the  conclusion  stated,  "  to  all  which  opinions  of 
the  court  the  plaintiff  excepts,"  it  was  held  not  to  be  sufficient.* 

The  ap])ellate  court  will  not  presume  that  an  exception  was 
taken  at  the  proper  time,  merely  because  the  judge  Avho  tried 
the  cause  has  signed  a  bill  of  exceptions,  when  the  bill  does 
not  show  upon  its  face  that  the  exception  was  taken  at  the  time 
of  the  decision." 

A  bill  of  exceptions  should  be  reduced  to  form,  and  signed, 
during  the  term  in  which  the  cause  is  tried,  except  in  cases 
where  the  counsel  consent,  or  the  court,  by  an  entry  on  the 
record,  directs,  that  it  may  be  prepared  in  vacation,  and  signed 
nunc pi'o  tunc',  and  where  counsel  consent  that  it  may  be  set- 
tled out  of  term,  the  better  practice  is  to  file  a  written  stipula- 
tion, or  cause  an  entry  to  be  made  on  the  record,  to  that  effect." 

'  Dickhut  V.    Dtirrell,   11  111.    73;  ^  jjughes  v.    Robertson,    1    Mon. 

Buckmaster  v.  Cool,  12  111.  74;  Bur-  (Ky.)  215;    Bratton  v.    Mitchell,   5 

kett  V.  Bond,  12   111.  87;  Sullivan  v.  Watts  69;  Hill  v.  Ward,  2  Gilm.  285: 

Dollins,  13  111.  85:  Martin  v.  People,  see  R.  R.  Co.  v.  Garish,  39  111.  370; 

13  111.  341;  Dufield  v.  Cross,   13  111.  McPherson  v.  Hall,  44  111.  264;  R.  R. 

699;  Swaffordv.   Dovenor,    1  Scam.  Co.  v,  Hodglin,  85  111.  481. 

165;  Gilmore  v.   BaUard,   1  Scam.  ^Morris  v.  Buckly,  8  S.  &  R.  216; 

252;  Leigh  v.   Hodges,   3  Scam.  15;  Steicart  v.    Bank,  11   S.  &  R.  270; 

3Ieire  v.   Brush,   3  Scam.  21;  Gib-  R.   R.   Co.    v.  Palmer,    24    111.    43; 

bons  V.  Johnson.  3  Scam.  61;  Evans  Leigh  v.  Hodges,  3  Scam.  17. 

V.    Fisher,  5  Gilm.  453;  Metealf  v.  *  Gibbons  v.  Johnson,  3  Scam.  61; 

Edmiston,  25  111.  392;  Charlesworfh  see  Dickhut  v.  Durrell,  11  111.  72. 

V.  Williams,    16  111.    338:  Hance  v,  '^Dickhut    r.    Durrell,   11  111.   72; 

Miller,     21    111.     636;     Trustees    v.  see  3Iiller  v.  Glass,  118  III  443. 

Misenheimer,   89   111.   151:  Di'ury  v.  ^  Evans  v.   Fisher,   5   Gilm.   453; 

Dungan,  2  Bradw.  15;    R.  R.  Co.  v.  Burst  v.    Wayne,   13   111.    664;   see 

Rhodes,   76   111.    285;  Harbaugh  v.  Satonstall    v.  Comm.,  13   111.    705; 

City,  74  111.  367;  Caveny  v.  Weiller,  Dent  v.  Davidson,  52  111.  109;  French 

90  111.  158.  V.  Edwards,  13  Wall.  506;  R.  R.  Co. 


740  BILLS    OF    EXCEPTIONS. 

The  court  may  permit  the  bill  to  be  filed  at  the  next  term, 
but  the  practice  is  not  commended. ' 

The  time  for  filing  a  bill  of  exceptions  can  be  extended  by 
the  judge  only  in  term  time,  when  sitting  as  a  court,''  and  be- 
fore the  time  originally  limited  has  expired.^ 

When  a  party  has  presented  his  bill  of  exceptions  to  the 
judge  within  the  time  prescribed  for  the  filing  thereof,  he  has,^ 
complied  with  the  rule  so  far  as  it  is  in  his  power  to  do  so, 
and  is  not  to  be  prejudiced  because  the  judge  may  not  actually 
sio-n  the  bill  until  after  the  time  so  fixed  has  expired,'  and  the 
presumption  is,  where  the  judge  has  signed  the  bill,  that  he 
would  not  have  done  so  unless  it  had  been  presented  in  due 
time.  The  mere  fact  that  the  bill  was  not  filed  within  the 
prescribed  time,  does  not  rebut  that  presumption;  though  it 
may  be  rebutted  by  proof.' 

An  amended  bill  of  exceptions,  filed  in  the  appellate  court 
without  suggesting  a  diminution  of  the  record,  or  obtaining 
leave  to  file  a  supplemental  record,  and  after  the  filing  of  the 
record  itself,  will  not  be  considered  in  determining  the  cause.® 

A  seal  is  essential  to  the  validity  of  a  bill  of  exceptions.'  It 
must  be  signed  and  sealed  by  the  judge  who  tried  the  cause;' 
and  if  he  has  inadvertently  omitted  to  seal  it,  he  may,  on  mo- 
tion, be  permitted  to  do  so,  although  his  term  of  ofiice  has  ex- 

V.  People,  106  111.  652;  see  Morris  v.  ''Miller  v.  Jenkins,  4A  111.  443;  Gale 

Watson,  61  111.  App.  536.  v.  Rector,  10  Bradw.  262;  Associa- 

'  Buckmaster  v.  Beanies,   4  Gilm.  tion  v.  Powers,  30  111.  App.  82;  R.  R. 

443;    Mrownfleld  v.    Brownfield,  58  Co.  v.  DeMarks,  51  111.  App.  581;  City 

111.    152;    see  Stein    v.    Kendall,   1  \.  Grove,  bQ  III  App.  dll;  French  y. 

Bradw.    101;   Goodrich  v.   Cook,  81  Hotchkiss,  60  111.  App.  580. 

j^  41^  ^  R.  R.  Co.  V.  Peterson,  15  Bradw. 

^Hakev.  Strubb,  121  111.  322.  149;  City  v.  Johnson,  12  Bradw.  255; 

^Hawes  v.    People,   129   111.  123;  Thompson  v.  Duff,   17  Bradw.   304; 

see  Ins.  Co.y.  Shattuck,  159  111.  610.  Reeves  v.  Reeves,  54  111.  332;  David 

*  Hawes  v.   People,    129   111.    123;  v.  Bradley,  l^lW.^iQ;  Lumber  Co.  \. 

Hoke  V.  Struble,  121  111.   322;   R.  R.  City  of  Chicago,  56  111.  304;  R.  R. 

Co.  V.  Morrison,  160  111.  288.  Co.  v.   Town  of  Marseilles,  107  111. 

5  Ferris  v.  McClure,  40  111.  98.  313;  R.  R.  Co.  v.  Riley,  26  111.  App. 

^Elliot  V.   Levings,    54    111.   213;  171;  R.  R.  Co.  v.  Benham,  25  111. 

see   Goodrich  v.    City,  62   111.  121;  App.  248;  Alley  v.  McCabe,  46  111. 

Myers  v.  Phillips,  68  111.  269;  Smith  App.  368. 
V.  Newland,  40  111.  100. 


BILLS  OF  exceptions!  741 

pired;'  and  if  a  judge  refuses  to  sign  a  bill  of  exceptions,  prop- 
erly presented,  a  mandamus  will  be  awarded  to  compel  him  to 
sign  it/ 

In  a  case  in  Illinois,  where  a  judge  refused  to  sign  a  bill  of 
exceptions,  and  disobe^^ed  a  mandamus  from  the  supreme 
court,  requiring  him  to  sign  it,  and  then  resigned  his  office,  it 
was  held  that  he  could  not  be  compelled  to  sign  the  bill,  being 
no  longer  in  office;  but  he  was  attached  and  fined  for  the  con- 
tempt.^ And  it  being  understood  that  the  parties  admitted 
the  truth  of  the  bill,  the  court,  on  motion  of  the  appellant, 
ordered  that  it  should  be  taken  and  considered  as  a  part  of 
the  record/  In  another  case,  where  the  counsel  for  a  prisoner 
was  arrested  during  the  trial,  and  the  prisoner  was  thereby- 
prevented  from  tendering  a  bill  of  exceptions,  the  supreme 
court  held  that  it  could  not  grant  him  any  relief  in  the  matter/ 

As  to  the  effect  of  the  death  of  trial  judge  before  bill  of  ex- 
ceptions is  signed  by  him,  see  the  cases  of  Allen  v,  McCahe^ 
147  111.  410,  and  People  v.  McConnell,  155  111.  192.  When  the 
recitals  of  the  record  made  up  by  the  clerk  of  the  court,  and 
the  bill  of  exceptions  disagree,  the  latter  will  prevail.® 

When  a  bill  of  exceptions  is  signed  and  sealed  by  the  judge, 
both  parties  are  concluded  by  it.' 

What  the  bill  should  contain,  and  when  necessary, 
etc. — A  party  excepting  should  show  by  his  bill  all  those  mat- 
ters of  which  he  intends  to  avail  himself  in  the  appellate  court, 
and  which  would  not  otherwise  appear  in  the  record  of  the 
cause;  the  function  or  office  of  a  bill  of  exceptions  being  to  in- 
corporate into  the  record  and  preserve  exceptions  to  the  rulings 
of  the  court  upon  motions,  questions  of  evidence  and  other 

^Frazier  v.  Laughlin,  1  Gilm.  185;  Anthony,  129  111.  218;  Haices  v.  Peo- 

see  Gibson  v.  Bailey,  9  N.   H.  169;  pie,  129  111.  123. 

City  V.    Johnson,   12    Bradvv.    255;  ^People  v.  Pearson,  3  Scam.  270. 

Jhichardt  v.  People,  12  Bradw.  299.  *  Bristol  v.  Phillips,  3  Scam.  287; 

-  3    Black.    Com,    372;    People    v.  see  R.  R.  Co.  v.  Gilchrist,  9  Bradw. 

Pearson,    2    Scam.    189;    People  v.  135. 

Williams,  91  111.  87;  R.  R.  Co.  v.  ^  O'Hara  y.  People,  40111  583. 

Gilchrist,  9  Bradw.  135;   People  v.  ^Hirthv.  LynQh,  62  111.  App.  111. 

Prendergast,  117  111.  588;  Peojjle  v.  "<  Bingham  v.  Cabbott,  3  Dall.  38: 

Bull  N.  P.  316. 


742 


BILLS    OF   EXCEPTIONS. 


matters  which  otherwise  would  be  no  part  of  it,  and  therefore 
could  not  be  considered  on  writ  of  error  or  appeal/ 

Where  an  exception  is  taken  to  permitting  a  question  to  be 
asked,  and  the  witness  to  answer  it,  the  answer  as  well  as  the 
question  should  be  given  in  the  bill  of  exceptions;"  and  a 
party  complaining  of  the  refusal  to  admit  evidence,  should 
show  by  his  bill  of  exceptions  what  the  evidence  was  which 
was  offered  and  refused." 

An  affidavit  in  support  of  a  petition  for  a  change  of  venue,* 
or  of  any  kind;  ^  or  the  reasons  in  writing  filed  on  moving  for 
a  new  trial;  *  or  a  sworn  answer  of  parties  to  an  attachment 
for  a  contempt; '  or  a  copy  of  an  instrument  indorsed  on  a  dec- 
laration; "  or  a  bill  of  particulars;  ^  or  exhibits  or  instruments 
or  documents  offered,'"  can  only  be  made  a  part  of  the  record  by 
a  bill  of  exceptions,  and  unless  so  presented  will  not  be  consid- 


'  Vanlandingham  v.  Felloivs,  1 
Scam.  233;  Miller  v.  Houcke,  1 
Scam.  501 ;  McLaughlin  v.  Walsh,  8 
Scam.  185;  Bristol  v.  Phillips,  3 
Scam.  287;  Saunders  v.  McCollins, 
4  Scam.  419;  McKee  v.  Ingalls,  4 
Scam.  30;  Cummings  v.  McKinney, 
4  Scam.  58;  Hatch  v.  Potter,  2  Gilm. 
725;  Corey  v.  Russell,  3  Gilm.  366; 
Petty  V.  Scott,  5  Gilm.  209;  Holmes 
V.  People,  5  Gilm.  478:  Mann  v. 
Russell,  11  111.  586;  Gallimore  v. 
Dazey,  12  111.  143;  McBain  v.  Enloe. 
13  111.  76;  Randolph  v.  Emerick,  13 
111.  344;  Moss  v.  Thompson,  13  111. 
570;  Edioards  v.  Vandermack,  13 
111.  633;  McCormick  v.  Gray,  16  III. 
138;  Kirbeyy.  Watt,  19  111.  393;  R. 
R.  Co.  V.  Jones,  20  111.  221;  Schlwmp 
V.  Reidersdorf,  28  III.  68;  Ballance 
V.  Leonard,  37  111.  43;  Nichols  v. 
People,  40  111.  395;  Douglas  v.  Par- 
ker, 43  111.  146;  Ins.  Co.  v.  Vandu- 
zor,  49  111.  489;  Flaherty  v.  Mc- 
Cormick,  123  111.  525;  Hake  v.  Stru- 
beL  121  111.  321. 

^Miller  v.  Houcke,  1  Scam.  501; 
Russell  V.  Martin,  2  Scam.  492;  Hay 


V.  Smith,  3  Scam.  427;  see  Wariier 
V.  Manski,  17  111.  234. 

^Kirbyv.  Watt,  19  111.  393. 

*  Schlnmp  v.  Reidersdorf,  28  111. 
68;  McElwee  v.  People,  77  111.  493; 
Bedee  v.  People,  73  111.  320;  Pick  v. 
Ketchum,  73  111.  366;  R.  R.  Co.  v, 
Melville,  66  III.  329. 

^  See  Lucas  v.  Farrington,  21  111. 
31;  Schuh  v.  UOenck,  51  111.  85; 
Cunningham  v,  Craig,  53  111.  252; 
Jones  \.  People,  b^  III.  366;  Vanso- 
coyoc  V.  Kimler,  77  111.  151;  Thomp- 
son V.  White,  64  III.  314;  Gaddy  v. 
McCleave,  59  111.  182;  Buettner  v. 
Mfg.  Co.,  90  111.  415;  R.  R.  Co.  v. 
Boumian,  122  111.  598;  Pardridge  v. 
Morgenthau,  157  111.  395. 

^  See  boyle  v,  Levings,  28  111.  314; 
Trustees  y.  Misenheimer,  89  111.  151; 
McCord  Y.'Bank,  84  111.  49;  E'lig'eZ  v. 
SeZZers,  51  111.  App.  577. 

'  Comm.  V.  People,  31  111.  97. 

«  Smith  V.  IFt'Zson,  26  111.  186;  see 
Martin  v.  Ehrenfeld,  24  111.  187. 

9  Eggleston  v.  Sucfc,  24  111.  262; 
Schojield  v.  SeZZZe?/,  31  111.  515. 

'"  Legnard  v.  Rhodes,  51  111.  App. 


BILLS    OF    EXCEPTIONS.  743 

ered  by  the  appellate  court.  A  party  can  not  question,  on 
error,  a  ruling  of  the  court  below  in  refusing  to  require  the 
plaintiff  to  file  a  more  definite  bill  of  particulars,  unless  that 
already  filed  is  preserved  in  the  record  by  a  bill  of  exceptions.' 
And  when  a  party  excepts  to  the  denying  of  a  motion  (on 
which  counter  testimony  may  be  heard),  and  shows  in  his  bill 
of  exceptions  an  affidavit  in  support  of  the  motion,  he  should 
also  show  that  such  affidavit  was  the  only  evidence  heard  on 
the  question."  And  it  is  said  that  the  "  mere  entry  of  a  motion 
does  not  make  the  motion  or  reasons  therefor  a  part  of  the 
record,  but  that  must  be  done  by  bill  of  exceptions."  ' 

The  proper  practice,  where  a  party  objects  to  an  order  upon 
a  petition  for  the  removal  of  a  cause  from  a  state  to  a  federal 
court,  is  to  preserv^e  in  a  bill  of  exceptions  the  evidence  upon 
which  the  order  was  made;  and  the  record  will  then  show 
whether  or  not  such  order  was  erroneous.* 

To  enable  the  appellate  court  to  pass  upon  the  propriety  of 
modified  instructions,  the  instructions  as  asked  should  be 
before  that  court,^  and  also  the  modifications  as  made  by  the 
court  belqw.^  Errors  assigned  on  the  refusal  of  instructions 
.will  not  be  considered,  unless  those  instructions  which  were 
given  are  preserved  in  the  record. ° 

In  the  case  of  an  exception  to  the  admissibility  of  testimony 
the  particular  testimony  objected  to,  and,  it  seems,  the  ground 
of  the  objection,  should  appear  by  the  bill  of  exceptions.'  And 
where  the  bill  of  exceptions  does  not  purport  to  contain  all 
the  evidence,  the  presumption  is  in  favor  of  the  verdict.* 

477;  Page  v.  Brew.  Co.,  54  111.  App.  » Boise  v.  Henney,  32  111.  130;  Bal- 

157;Leavittv.  Kennicott,  54111.  App.  lance  v.  Leonard,  37111.  43;  Gulliver 

634;  Hennesy  v.  Metzger,  50  111.  App.  v.  Ex.  Co.,  38  111.  503;  Prindeville  v. 

533;  Cheney  v.Beaty,5Q  111.  App.  90;  People,  43  111.  217;  Gill  v.  Skilton, 

Reeve  V.  Peppard,  57  111.  App.  556.  54  111.   158;  Kinig  v.   Ward,  77  111. 

»  Schofield  V.    Settley,   31  111.  515;  603. 

see  Neely  v.  Wright,  72  111.  292.  «  Gill  v.  Slelton,  54  111.  158;  Cox  v. 

2  Miller  v.  Metzer,  16  111.  390.  People,  109  lU.  457;  Ey.  Co.  v.  Yando, 

3  Daniels  v.    Shields,  38  111.    197;  127  111.  215. 

Gill  V.  Peo2}le,  42  111.  321.  •>  Myers  v.  People,  26  111.  173;  John- 

*B.  E.  Co.  V.  People,  106  111.  652;  son  v.  R.  E.  Co.,  Ill  111.  413. 

Jn.9.   Co.  V.   Vanduzor,   49  111.  489;  ^ Elizabethtoivnv.  LeJler,2'S  lU.  90; 

Tram.  Co.  v.  Joesting,  89  111.  152;  Buckland  v.  Goddard,  36   111.  206; 

Cro?me  V.  Fan  iVbr^/mncfc,  56  111.  353;  Ballance  v.  Leonard,  37  111.  43;  E. 

Ins.  Co.  V.  Heck,  65  111.  111.  E.  Co.  v.  Mclntire,  39  111.  298;  R.  E. 


744  BILLS    or   EXCEPTIONS. 

If  documents  introduced  are  lengthy,  and  relate  partly  to 
other  matters,  it  seems  the  material  parts  only  need  be  pre- 
served in  the  record.' 

A  bill  of  exceptions  is  not  necessary  in  any  case  where 
the  error  is  intrinsic,  appearing  on  the  face  of  the  record.^ 
An  exception  to  the  overruling  of  a  demurrer,'  or  a  motion  in 
arrest  of  judgment,*  is  improper,  as  these  matters  are  part  of 
the  record,  and  need  no  bill  of  exceptions  to  make  them  so. 
If  a  bill  of  exceptions  includes  the  pleadings  in  the  cause,  or 
other  unnecessary  matters,  the  costs  thereby  occasioned  will 
be  taxed  against  the  party  who  caused  their  insertion." 

Interrogatories  to  and  answers  of  a  garnishee,"  or  a  sub- 
mission and  award  filed  for  the  purpose  of  obtaining  judg- 
ment,' are  part  of  the  record,  and  need  not  be  put  into  a  bill 
of  exceptions.  Objections  to  remarks  of  counsel  not  con- 
tained in  the  bill  of  exceptions  will  not  be  considered  on 
appeal.* 

Where  a  judgment  is  confessed  in  tei'm,  on  a  promissory  note 
and  warrant  of  attorney,  these  papers  can  become  part  of  the 
record  only  by  being  preserved  in  a  bill  of  exceptions;  ^  but  it 
is  otherwise  in  the  case  of  a  judgment  confessed  in  vacation.'". 

Original  papers,  even  by  consent,  can  not  be  presented  in  the 
appellate  court  as  a  part  of  a  bill  of  exceptions,  unless  some- 
Co.  V.  Oarish,  39  III.  370;  Mner  v.      Sivift  v.  Castle,  23  111.  209;  Schmidt 
Phillips,  42  111.  123;  McPherson  v.       v.  Skelly,  10  Bradw.  564. 
Nelson,    44    111.   124:-,  Gallagher    v.  ^Hatvk  v.  McCiillough,  21111  220 

Brandt,  52  111.  80;  Esty  v.  Grant,  55      Hamlin  v.  Reynolds,  22  111.  207;  Mix 
111.341;  Trustees  T.  iJiseyiheimer,  89      v,  Nettleton,  29  111.  245;    Chase   v, 
lU.  151;  Lawyer  v.  Langham,  85  111.      De  Wolf,  69  111.  47;  Offield  v.  SUer 
138;  Culliner  v.   Nash,  76  111.  515;      15  Bradw.  308. 
Proutv.  Grout,  12111.456;  Henry  V.  *MixY.    Nettleton,    29    111.    245 

Halloway,  78  111.  356;  Lee  v.  Town,      Nichols  v.  People,  40  111.  395. 
118  111.  304;  Johnson  v.  Glover,  19  ^  R.  R.   Co.  v.  Jones,  20  111.  221 

Bradw.  585;  Brown  v.  Coal  Co.,  40       Vandusen  v,  Pomeroy,  24  III.  289. 
111.  App.  602;  Redner  v.  Davern,  41  *  Rankin  v.  Simonds,  27  111.  352. 

111.  App.  247;  Garrityv.  Hamburger,  ''  Buntain  v.  Curtiss,  27  111.  374. 

136  111.  499;  Goodwillie  v.  Lake,  137  ^People  v.  Board,  26  111.  App.  476; 

IlL    67;  Auburn    v.    Goodwin,   128      Hickam  v.  People,  137  111.  80;  Gan- 
lU,  65.  non  v.  People,  127  111.  518. 

*  Trustees  v.  Welchley,  19  111.  64.  ^  Waterman  v.  Caton,  55  111.  94. 

^Kitchell  V.  Burgwin,   21111.  40;  ^^  Durham   v.   Brown,   24    111.  94; 

Waterma7i  v.  Caton,  55  111.  94. 


BILLS    OF   EXCEPTIONS.  745 

thing  is  to  determined  by  an  inspection  of  them,  or  they  can 
not  be  exhibited  by  copy  so  as  to  present  the  point  of  law- 
intended  to  be  raised — and  then  they  should  be  clearly  identi- 
fied by  the  bill  of  exceptions.* 

A  bill  of  exceptions  presenting  a  mere  abstract  proposition, 
as  applicable  to  one  case  as  to  another,  can  not  be  made  the 
foundation  of  a  writ  of  error.  The  party  excepting  must  dis- 
tinctly point  out  wherein  he  supposes  himself  to  be  aggrieved,^ 

Although  a  bill  of  exceptions  may  show  that  testimony  was 
improperly  admitted  or  excluded,  or  instructions  were  im- 
properly given  or  refused,  or  other  error  was  committed  by 
the  court,  yet  unless  it  also  appears  from  the  bill  that  the 
proper  objections  were  made  and  exceptions  taken,  such  mat- 
ters can  not  be  assigned  for  error.^ 

The  counsel  for  the  party  excepting  prepares  the  bill  of  ex- 
ceptions, and  submits  it  to  the  judge,  who  examines  it,  and,  if 
correct,  signs  and  seals  it;  and  it  is  then  filed,  and  becomes  a 
part  of  the  record. 

Documentary  evidence  is  sufiiciently  made  a  part  of  the 
record  by  recitals  in  the  bill  of  exceptions  that  it  was  marked 
by  certain  numbers  and  attached  thereto  and  made  a  part 
thereof,  and  by  attaching  the  same  to  such  bill  designated  by 
such  numbers,  before  the  bill  is  signed  and  sealed  by  the 
judge.* 

It  is  impossible  to  give  forms  of  bills  of  exceptions  appli- 

1  Trustees  v.  Welchley,  19  111.  64.  470;  Boyle  v.  Levings,  28  111.  314;  R. 

'^ King  V. Kenny,  iOhiold;  McDon-  R.  Co.  v.  Garish,  39  111.  370;  R.  R. 

galv.  Fleming,  4:  Ohio  388;  Lewis  v.  Co.  v.  McKean,  40  111.  220;  McClur- 

Sanfc,  12  Ohio  132;  see  il/^/ers  v.  Peo-  kin  v.  Ewing,  42    111.  283;  Gardner 

pie,  26  111.  173.  V.  Haynie,  42  111.  291;  Gill  v.  People, 

^Snyder   v.    Lafrainboise,  Breese  42  111.  321;  McPherson  v.   Hall,  44 

343;  Peck  v.  Boggess,  1   Scam.    281;  111.  264;  Boynton  v.  Remvick,  46  111. 

Miller     v.    Dobson,    1    Gilm.     572;  280;    Natlian  v.    City,  46    111.  347; 

Sdilenker  v,   Risley,   3  Scam.   483;  Johnson  v.  Gillett,  52  111.  358;   Min- 

Selby  V.  Hutchinson,   4  Gilm,    319;  gia  v.  People,  54  111.  274;  People  v. 

Buckmaster  v.   Cool,  12  111.  74;  Bur-  Green,  54  111.  280;  R.  R.  Co.  v.  Miller, 

kett  V.  Bond,  12  111.    87;  Martin  v.  55  111.  448;  Wright  v.  Wheeler,  55  111. 

People,  13  111.  341;  Pottle  v.  McWor-  528. 

ter,  13  111.  454;  Smith  v.  Kahili,    17  *Legnardx.  Rhoades,  156  HI.  431; 

111.  67;   Sedgu'ick  v.  Phillips,  22  111.  Moses  v.  Loomis,  156  111.  392. 
183;  Mathews  v.  Hamilton,  23  III. 


746  BILLS    OF   EXCEPTIONS. 

cable  to  all  cases.     The  following  may  by  used,  varying  them 
to  suit  the  circumstances. 

No.  365.    Bill  of  exceptions  to  evidence,  instructions,  and  denying  of  motion 

for  new  trial. 

In  the Court. 

Term,  18—. 

CD.) 

ats.   V  Assumpsit. 
A.  B.  )      Be  it  remembered,  that  on  the  trial  of  this  cause,  in  this  term, 
the  plaintiff  gave  in  evidence  on  his  behalf  as  follows,  that  is  to  say: 

J.  K.,  being  duly  sworn,  testified:  My  name  is  J.  K. ;  I  am  acquainted 
with,  etc.  (Objections  made  and  exceptions  taken  in  the  course  of  the 
examination  may  be  set  forth  in  this  manner:)  Thereupon  the  counsel  for 
the  plaintiff  asked  the  witness  this  question:  What,  etc.  To  which  ques- 
the  defendant,  by  his  counsel,  then  and  there  objected,  for  the  reason, 
etc.;  but  the  court  overruled  the  objection,  and  permitted  the  witness  to 
to  answer  the  question,  which  he  thereupon  did  as  follows:  I  heard,  etc. 
To  which  ruling  and  decision  of  the  court,  in  permitting  this  question  to 
be  so  asked  and  answered,  the  defendant,  by  his  counsel,  then  and  there 
excepted.  {Proceed  with  the  testimony  thus:)  And  thereupon  the  witness 
further  testified:     I  acted  for  the  plaintiff,  etc. 

On  cross-examination  by  the  counsel  for  the  defendant,  this  witness  tes- 
tified :  I  was  not  present,  etc. 

(Proceed  in  like  manner  with  the  testimony  of  any  otlier  witnesses  for  the 
plaintiff.) 

And  thereupon  the  defendant  gave  in  evidence  on  his  behalf  as  follows, 
that  is  to  say  : 

(Hej'C  insert  the  testimony  for  the  defendant,  vnth  any  objections  made 
and  exceptions  taken  by  him) 

The  foregoing  was  all  the  evidence  introduced  on  the  trial  of  this  cause. 

And  thereupon  the  court  gave  to  the  jm-y,  on  behalf  of  the  plaintiff,  the 
following  instructions,  to  wit : 

(Here  insert  the  instructions  for  the  plaintiff.) 

To  the  giving  of  each  and  all  of  which  instructions  the  defendant,  by  his 
counsel,  then  and  there  excepted. 

And  thereupon  the  court  gave  to  the  jury,  on  behalf  of  the  defendant, 
the  following  instructions,  to  wit : 

(Here  insert  the  instructions  given  for  the  defendant.) 

And  the  defendant,  by  his  counsel,  then  and  there  asked  the  court  to  also 
give  to  the  jury  the  following  instructions,  to  wit : 

(Hereinsert  the  refused  instructions.) 

But  the  court  refused  to  give  these  instructions  to  the  jury;  to  which  de- 
cision of  the  court  in  refusing  to  give  the  same,  and  each  of  them,  to  the 
jury,  the  defendant,  by  his  counsel,  then  and  there  excepted. 

And  thereupon  the  jury  rendered  a  verdict  against  the  defendant;  where- 
upon the  defendant,  by  his  coimsel,  then  and  there  moved  the  court  to  set 


BILLS    OF    EXCEPTIONS.  747 

aside  the  verdict  so  rendered,  and  grant  a  new  trial  of  this  cause,  and  filed 
the  following  reasons  in  writing  for  his  motion,  to  wit: 

{Here  insert  the  reasoyis  filed.) 

But  tlie  court  denied  the  motion,  and  gave  judgment  on  the  verdict 
against  the  defendant;  to  which  decision  of  the  court,  in  denying  such 
motion,  the  defendant,  by  his  counsel,  then  and  there  excepted. 

And  forasmuch  as  the  matters  above  set  forth  do  not  fully  appear  of 
record,  the  defendant  tenders  this  his  bill  of  exceptions,  and  prays  that  the 
same  may  be  signed  and  sealed  by  the  judge  of  this  court,  pursuant  to  the 

statute  in  such  case  made;  which  is  done  accordingly,  this day  of,  etc. 

L.M.,  Judge,     [l.  s.] 

No.  366.     Bill  of  exception  on  the  refusal  of  a  continuance. 

{Title  of  court,  etc.)     Be  it  remembered,  that  on  this day  of,  etc.,  in 

this  term,  the  defendant  moved  the  court  to  continue  this  cause,  on  account 
of,  etc. ,  and  read  and  filed  in  support  of  his  said  motion  the  following 
afiidavit,  to  wit: 

{Here  insert  the  affidavit.) 

But  the  court,  having  heard  the  said  afiidavit,  (*)  denied  the  said  motion, 
and  refused  to  continue  this  cause;  to  which  ruling  and  decision  of  the 
court  the  defendant,  by  his  counsel,  then  and  there  excej^ted.  A  nd  because 
the  matters  aforesaid  do  not  fully  appear  of  record,  the  defendant  presents 
this  his  bill  of  exception,  and  prays  that  the  same  may  be  signed  and  sealed 
by  the  judge  of  this  court,  pursuant  to  the  statute,  etc. ,  wliicli  is  accord- 
ingly done. 

L.  M,,  Judge.     [L.  s.] 

In  the  case  of  a  motion  on  which  counter  affidavits  or 
testimony  may  be  heard,  insert  (at  the  asterisk  in  the  above 
form)  the  words,  "  which  was  all  the  evidence  heard  in  that 
behalf" — first  setting  forth  all  the  affidavits  or  testimony 
introduced.' 

Bills  of  exception  ma}^  be  amended  upon  application  and 
notice  to  the  adverse  party;  but  it  must  be  made  in  term  time.= 

See  several  bills  of  exceptions  to  instructions  of  the  court, 
in  1  Scam.  R.  47,  107,  181, 187;  a  bill  of  exceptions  to  evidence 
and  the  denial  of  a  motion  for  a  new  trial,  in  IS  111.  R.  392; 
and  a  bill  of  exception  on  the  denial  of  a  motion  to  set  aside  a 
judgment  by  confession,  in  1  Scam.  R.  428, 

'  Miller  v.  Metzger,  16  111.  390.  Lamb,    117   111.  550;   Pecple  v.  An- 

2  Goodrich  v.  Minonk,  62  111.  121;  thomj,  129  111.  218;  Wright  v.  Griffey, 

Myers  v.PhiUips,  68111.269;   Smith  146  111.394;    R.  R.   Co.  \.  Levy,  57 

V.  JSleivland,  40  111.  100;  Heiasen  v.  111.  App.  365. 


CHAPTEK  XXVIII. 

AGREED  CASES— QUESTIONS  OF  LAW  CERTIFIED. 

Agreed  cases — Certified  to  supreme  or  appellate  court. — 

It  is  provided  by  section  74  of  the  Practice  Act  that 

''  The  parties  in  any  suit  or  proceeding  at  law  or  in  chancery, 
in  any  circuit  court,  or  the  superior  court  of  Cook  county,  or 
in  any  city  court,  make  an  agreed  case  containing  the  points 
of  hiw  at  issue  between  them,  and  file  the  same  in  such  court; 
and  the  said  agreed  case,  with  the  decision  thereon,  may  be 
certified  to  the  appellate  court  or  supreme  court  by  the  clerk 
of  such  court,  without  certifying  any  fuller  record  in  the  case; 
and  upon  such  agreed  case  being  so  certified  and  filed  in  the 
appellate  court  or  supreme  court,  the  appellant  or  plaintiff'  in 
error  may  assign  errors,  and  the  case  shall  then  be  proceeded 
in  in  the  same  manner  as  it  might  have  been  had  a  full  record 
been  certified  to  said  appellate  court  or  supreme  court."  ' 

When  a  court  has  reason  to  believe  that  an  agreed  case  is 
not  real,  but  a  fictitious  proceeding,  proof  will  be  required  that 
the  action  is  not  feigned.^  The  supreme  court  or  appellate 
court  has  no  jurisdiction  to  decide  an  agreed  case  without  it 
first  having  been  decided  by  a  trial  court  and  a  record  is  cer- 
tified from  that  court;  ^  nor  can  such  courts  acquire  jurisdic- 
tion by  stipulation  of  the  parties  in  the  absence  of  a  judgment." 
Under  an  agreed  statement  of  facts,  where  the  clerk  certi- 
fied counsel's  certificate  and  "  the  final  decision  of  the  case," 

'  2  Starr    &    Curtis,    1837;    Rev.  ^  piumleigh  v.  White,  4  Gilm.  387 

Stat  (1895),  1165;  Rev.   Stat.   (1893),  see  R.  R.  Co.  v.  Giiertin,  115111.  466 

1081.  *  3Ioore  v.   Bolin,  5  Bradw.    556 

"^People    v.    Leland,    40    111.118;  Village  v.  Cemetery  Ass'?i,  5  Bradw. 

Spragginv.  Houghton,  2Sc8im.  211;  230;    Moody   v.  Peake,   13  111.    343 

McConnell  v.  Shields.  1   Scam.  582.  Cridl  v.   Keener.  17  111.  246;  Cox  v 

Rule  20  of  Sup.  Ct.  93  111.  7;  Puter-  Jordan,  86  111.  560. 
baugh's  Ch.  PI.  &  Pr.  956. 

(748) 


AGREED   CASES — QUESTIONS    OF   LAW    CERTIFIED.  7-i9 

the  transcript  was  held  fatally  defective  for  omitting  the  cer- 
tificate of  the  decision  of  the  court  on  the  questions  of  law 
stated  in  the  stipulation.* 

Questions  of  law  certified — Judges  may  certify  questions 
of  law. — Section  75  of  the  Practice  Act  provides  that 

"Any  judge  of  the  circuit  court,  or  the  superior  court  of 
Cook  county,  or  of  an}'-  city  court,  may,  if  the  parties  liti- 
gant assent  thereto,  certify  any  question  or  questions  of  law 
arising  in  any  case  tried  and  finally  determined  before  him  to 
the  appellate  or  supreme  court,  together  Avith  his  decision 
thereon;  or  the  parties  in  the  case  ma}'-  agree  as  to  the  ques- 
tions or  points  of  law  arising  in  the  case,  and  the  same  may 
be  certified  by  the  counsel  or  attorneys  of  the  respective 
parties,  who  shall  sign  their  names  thereto;  and  upon  such  cer- 
tificate being  made,  the  same  shall  be  filed  in  the  court  render- 
ing the  decision,  and  a  copy  of  such  certificate,  certified  by 
the  clerk  of  said  court,  wi^-h  the  decision  thereon  and  final  de- 
cision in  the  case,  to  the  appellate  court  or  supreme  court,  and 
filed  therein;  and  upon  filing  the  same,  the  like  proceedings 
may  be  had  in  the  appellate  court  or  supreme  court  as  if  a  full 
and  complete  record  had  been  transcribed  and  certified  to 
said  court."  ^ 

Exceptions  to  the  two  above  sections. — It  is  declared  by 
section  7G  of  the  Practice  Act,  that 

"  The  two  preceding  sections  shall  not  apply  to  cases  in 
which  the  title  to  real  estate  is  in  question,  nor  to  cases  where 
any  question  of  fact  appertaining  to  the  constitutional  enact- 
ments of  a  law  of  this  state  is  involved." ' 

Certification  of. — In  plain  terms,  section  75  of  the  statute 
prescribes,  first,  a  certificate  by  the  counsel  or  attorneys  of  the 
"  questions  or  points  of  law  arising,"  a  copy  of  which  must  be 
certified  by  the  clerk;  who  must  also  certify,  second,  the  decision 
thereon;  and  third,  the  final  decision.  The  court  is  not,  under 
this  section,  authorized  to  accept  the  agreement  or  certificate 

>  R.  R.  Co.  V.  Goodwin,  18  Bradw.  ^  2  stair  &  Curtis,  1837;  Rev.  Stat. 

65;  see  Ives  v.  Hulce,  17  Bradw.  38.       (1893),  1081;   Rev.  Stat.  (1895),  1165; 

*  2  Starr  &  Curtis  1837;  Rev.  Stat,      sec  Wheeler  v.  Gage,  28  III.  App.  427. 
(1895),  1165;  Rev.   Stat.  (1893),  1081; 
seeR.  R.  Co.  v.  Guertin,  115  111.  466. 


750  AGREED   CASES — QTTESTrONS   OF   LAW   CEETIEIED. 

of  counsel  as  to  the  facts,  and  without  them,  the  court  can  not 
know  what  the  decision  was,  upon  the  points  of  law  stated.' 

No.  367.    Agreed  ease  behceen  parties  in  suit  pending. 
(Under  Sec.  74,  Practice  Act.)  ^ 

In  the Circuit  Court. 

Term,  A.  D.  18—. 

A.  B. 


The  — Railroad  I  Trespass  on  the  ease. 

Company.         J       We,  A.  B.,  plaintiff,   and    the  defendant, rail- 
road company,  in  the  above  entitled  cause,  now  pend- 
ing and  undetermined  in  said  court,  in  pursuance  of  the  statute  in  such  case 
provided,  do  hereby  mutually  make  this  an  agreed  case  and  hereby  stipu- 
late as  follows,  that  is  to  say: 

That  on,  etc.,  the  plaintiff  filed  his  declaration  in  due  form,  counting 
upon  a  failure  of  the  defendant  to  fence  its  road,  as  required  by  the  statute 
in  such  case  made  and  provided,  that  is  to  say  {here  set  forth  the  substance 
of  the  allegations  of  each  count);  and  that  on,  etc.,  the  defendant  filed 
its  plea  of  the  general  issu3  thereto,  to  which  the  plaintiff  added  a  similiter. 

That  the  facts  of  the  matter  in  controversy  are  as  follows:  {Here  set 
forth  the  facts  in  the  case  as  agreed  upon.) 

It  is  further  stipulated  and  mutually  agreed  by  and  between  the  said  par- 
ties, that  the  points  of  law  at  issue  between  them  are  as  follows,  viz. : 

I.  Is  the  plaintiff  entitled  to  recover,  he  having  built  the  fence  off  the 
line  between  him  and  the  defendant's  right  of  way,  as  above  set  forth? 

II.  Is  it  lawful  to  award  as  damages  a  sum  in  double  the  amount  of  the 
cost  of  the  fence  mentioned? 

III.  Under  the  foregoing  stipulation  and  agreement,  is  the  plaintiff  en- 
titled to  recover  against  the  defendant  ? 

And  it  is  further  stipulated  and  agreed  by  and  between  the  parties,  that 
upon  the  foregoing  agreed  case,  containing  the  points  of  law  at  issue  be- 
tween them,  and  filed  in  said  cause,  that  the  court  shall  decide  tliereon,  and 
shall  render  judgment  therein,  according  as  the  rights  of  the  said  parties 
in  law  may  appear,  in  the  same  manner  as  if  the  facts  aforesaid  were 
proved  upon  the  ti'ial  of  said  issue;  in  pursuance  of  the  statute  in  such  case 
provided. 

Dated,  this day  of A.  D.  18—. 

A.  B.  by ,  his  attorney. 

The Railroad  Co.  by ,  its  attorney. 

No.  36S.    Decision  of  the  court  upon  agreed  case  between  parties  in  suit 

pending. 

(Under  section  74,  Practice  Act.)  * 
{Venue,  and  title  of  cause  as  in  No.  367.) 

And  now  come  the  plaintiff  and  defendant,  by  their  respective  attorneys, 

1  ii.i2,  Co.  V.  Goodwin,  18  Brad.  65.  ^gee  R.  R.    Co.  v.    Goodwin,   18 

'  See  R.   R.   Co.   v.    Goodwin,  18      Bradw.  65. 
Bradw.  65. 


AGEEED   CASES — QUESTIONS   OF   LAW    CERTIFIED.  751 

and  this  cause  coming  on  to  be  heard  before  the  undersigned,  judge  of  said 
court,  upon  the  agreed  case  between  said  parties,  and  the  points  of  law  at 
issue  between  tliem;  and  the  same  having  been  argued  by  the  attorneys 
for  the  parties  respectively;  and  the  court  being  fully  advised  in  the  prem- 
ises, doth  decide  and  hold, 

I.  That  the  plaintiff  is  entitled  to  recover,  he  having  built  the  fence  off 
the  line  between  him  and  the  defendant's  right  of  way  as  in  said  agreement 
mentioned. 

II.  That  it  is  lawful  to  award  as  damages,  a  sum  in  double  the  amount 
of  the  cost  of  the  fence  mentioned, 

III.  That  under  the  stipulation  and  agreement  by  and  between  the  par- 
ties, and  upon  the  said  agreed  facts  and  the  law  of  the  case,  as  filed  in  said 
cause,  the  plaintiff  is  entitled  to  recover  against  the  defendant. 

IV.  Therefore  the  court  doth  decide  and  hold  that  the  plaintiff  is  en- 
titled to  recover  of  and  from  the  defendant  the  sum  of dollars,  with 

costs  of  suit  to  be  taxed  by  the  clerk,  and  directs  that  judgment  be  entered 
accordingly,  in  pursuance  of  the  statute  in  such  case  made  and  provided. 

Dated  this day  of ,  A.  D.  18 — . 

Judge. 

Upon  the  decision  of  the  court,  thus  made,  a  judgment 
should  be  entered,  whereupon  the  said  agreed  case,  with  the 
decision  thereon,  and  the  judgment  rendered,  may  be  certi- 
fied to  the  appellate  court  or  the  supreme  court,  by  the  clerk 
of  such  court,  without  certifying  any  fuller  record  in  the  case.' 

No.  369.    Agreement  that  judge  may  certify  questions  of  law. 
(Under  Sec.  75,  Practice  Act.) 

{Venue,  and  title  of  cause  as  in  No.  367,  ante). 

We,  A.  B.,  plaintiff.  andC.  D.,  defendant,  in  the  above  entitled  cause,  tried 
and  finally  determined  in  said  court,  do  hereby  consent  and  agree  that  the 
judge  of  said  court  may  certify  any  question  or  questions  of  law  aris- 
ing in  this  cause  to  the  appellate  {or  supreme)  court,  together  with  his  de- 
cision thereon,  in  pursuance  of  the  statute  in  such  case  provided;  and  that 
upon  such  certificate  being  made,  the  same  shall  be  filed  in  said  court,  and 
that  a  copy  of  such  certificate,  certified  by  the  clerk  of  said  court,  with  the 
decision  thereon,  and  the  final  decision  in  this  cause,  may  be  certified  to 
the  appellate  court  {or  supreme  court),  and  filed  therein;  and  upon  filing  the 
same,  the  like  proceedings  may  be  had  in  the  appellate  {or  supreme)  court, 
as  if  a  full  and  complete  record  liad  been  transcribed  and  certified  to  said 
court. 
Dated  this day  of ,  A.  D.  18  — . 

A.  B.,  Plaintiff. 

C.  D.,  Defendant. 

>  See  authorities  already  cited,  ante. 


752  AGREED    CASES — QUESTIONS    OF    LAW    CERTIFIED. 

No.  370.    Agreement  to  parties  as  to  questions  of  law  arising  in  the  case, 
(Under  Sec.  75,  Practice  Act.) 

{Venue  and  title  of  cause  as  in  No.  367,  ante.) 

We,  A.  B.,  plaintiff,  and  C.  D.,  defendant,  in  the  above  entitled  cause, 
tried  and  finally  determined  in  said  court,  do  hereby,  in  pursuance  of  the 
statute  in  such  case  provided,  consent  and  agree,  as  to  the  questions  or 
points  of  law  arising  in  the  cause;  and  that  the  same  may  be  certified  by 
our  respective  counsel  or  attorneys,  who  shall  sign  their  names  thereto; 
and  that  upon  such  certificate  being  made,  the  same  shall  be  filed  in  said 
court;  and  that  a  copy  of  such  certificate,  certified  by  the  clerk  of  said 
court,  with  the  decision  thereon,  and  the  final  decision  in  the  case,  may  be 
certified  to  the  appellate  court  (or  supreme  court),  and  filed  therein ;  and 
that  upon  filing  the  same,  the  like  proceedings  may  be  had  in  the  appel- 
late court  {or  supreme  court),  as  if  a  full  and  complete  record  had  been 
transcribed  and  certified  to  said  court. 

Dated,  etc. 

A.  B.,  Plaintiff. 
C.  D.,  Defendant. 

No.  371.    Certificate  of  judge  of  questions  of  law  arising  in  a  case  deter- 
mined, etc. 
(Under  Sec.  75,  Practice  Act.)* 

{Venue,  and  title  of  cause  as  in  No.  367,  ante.) 

The  undersigned,  judge  of  the,  etc.,  hereby  certifies  that  the  above  en- 
titled cause  was  based  upon,  and  originated  in  a  distress  for  rent,  under 
section  17  of  chapter  80  of  the  revised  statutes  of  1874,  by  the  plaintiff 
filing  with  the  clerk  of  said  court  a  copy  of  a  distress  warrant  against  the 
defendant,  with  an  inventory  of  the  propertj'^  levied  upon;  which  was  a 
warrant  against  the  goods  of  the  defendant  for  rent  claimed  by  the  plaintiff 
to  be  due  and  in  arrear  to  him  as  the  landlord  of  the  defendant. 

'  A  summons  was  issued,  as  pi'ovided  in  section  18  of  that  act,  which  was 
duly  served  on  the  defendant,  who  appeared  and  pleaded  "  no  rent  in 
arrear." 

After  this  plea  was  interposed,  the  plaintiff,  by  leave  of  court,  filed  the 
common  counts  in  assumpsit,  as  an  amendment  to  the  distress  warrant, 
and  to  this  the  defendant  pleaded  non-assuinpsit,  and  set-off. 

The  issues  thus  formed  were,  by  agreement  of  the  parties,  submitted  to 
the  court  for  trial  without  a  jury;  and  after  the  hearing  of  the  proof  and 
arguments,  the  court  ordered  "  that  plaintiff's  declaration  in  assumpsit,  and 
defendant's  plea  of  general  issue  be  stricken  from  the  files,"  for  the  follow- 
ing reasons:  {Here  insert  tlie  ground  for  the  same;)  and  thereupon  the 
court  found  the  issue  for  the  defendant,  and  assessed  his  damages  at  the 
sum  of dollars,  for  which  a  judgment  was  rendered  in  favor  of  the  de- 
fendant, and  against  the  plaintiff. 

Tliat  during  the  progress  of  said  trial  the  following  questions  of  law  did 

>  See  Cox  v.  Jordan,  86  111.  560. 


AGREED  CASES— QUESTIONS    OF   LAW    CERTIFIED.  753 

arise  and  were  determined  by  me,  as  such  judge,  in  said  cause,  that  is  to 
say : 

First.  Whether  or  not  said  plaintiff  had  a  right  to  amend  his  distress 
warrant,  so  as  to  make  the  same  cover  claims  and  demands  outside  of  and 
not  covered  by  the  claim  and  demand  for  rent,  by  adding  the  common 
counts  for  goods,  wares  and  merchandise  sold  and  delivered,  work  and 
labor  done,  money  loaned,  etc. 

Second,  Whether  or  not,  under  an  amendment  to  the  distress  warrant 
covering  the  aforesaid  claims  and  demands  of  the  plaintiff,  outside  of  the 
claims  and  demands  for  rent,  the  plaintiff  had  the  right  to  make  proof  of 
such  outside  claims  and  demands. 

Third.  Whether  or  not,  in  case  of  distress  for  rent,  the  tenant  having 
entered  his  appearance,  and  filed  a  claim  of  set-off  greater  in  amount  than 
the  landlord's  claim  for  rent,  the  landlord  had  the  right,  under  any  amend- 
ment wliich  could  be  legitimately  allowed  to  the  distress  warrant,  to  pre- 
sent and  make  proof  of  other  claims  and  demands  against  the  tenant,  out- 
side of  the  claim  and  demand  for  rent  upon  which  the  distress  for  rent  was 
based. 

Fourth.  Whether  or  not,  upon  the  trial  of  a  proceeding  based  upon  dis- 
tress for  rent  by  the  landlord  against  the  tenant,  when  the  tenant  has  en- 
tered his  appearance  in  said  causa,  the  plaintiff  has  the  legal  right  to  plead 
and  make  proof  of  claims  and  demands  outside  of  claims  and  demands  for 
rent  upon  which  the  distress  for  rent  was  based,  and  not  growing  out  of, 
or  dependent  upon  the  relation  of  landlord  and  tenant,  and  recover  a  judg- 
ment against  the  defendant  in  such  suit  or  proceeding  for  such  outside 
claims  and  demands,  if  the  proof  warrants  such  judgment. 

And  I  further  certify  that  each  and  all  of  said  questions  were  deter- 
min  d  by  the  undersigned,  as  judge  of  said  com-t,  against  the  plaintiff,  the 
undersigned  holding  that  the  claims  and  demands,  outside  of  the  claims  and 
demands  for  rent,  could  not  be  pleaded  and  given  in  evidence  by  the  land- 
lord in  such  a  proceeding,  but  that  the  tenant  had  the  right  to  plead  and 
prove  matters  of  set-off  against  the  landlord,  to  which  ruling  of  the  court 
the  plaintiff  then  and  there  excepted,  and  prayed  an  appeal  to  the  appellate 
court;  and  now  by  the  assent  of  the  parties  litigant,  the  foregoing  ques- 
tions or  points  of  law,  and  the  decisions  thereon,  are  hereby  certified  to  the 
appellate  court  {or  supreme  court)  of  the  state,  for  review,  in  conformity 
with  the  statute  in  such  case  made  and  provided. 

Dated,  etc. 

,  Judge. 

No.  372.    Agreement  as  to  questions  of  laio  arising  in  the  case. 
(Under  Sec.  75  of  the  Practice  Act.) 

{Venue,  and  title  of  cause  as  in  No.  367,  ante.) 

We,  the  undersigned,  E.  F.,  attorney  for  the  plaintiff,  and  G.  H.,  attor- 
ney for  the  defendant  in  the  above  entitled  cause,  tried  and  finally  deter- 
mined in  said  court,  in  pursuance  to  the  mutual  agreement  of  the  respective 
parties,  and  the  statute  in  such  case  made  and  provided,  do  hereby  agree, 
and  certify  as  to  the  questions  or  points  of  law  arising  in  the  progress  of 
48 


75J:  AGREED   CASES — QUESTIONS   OF   LAW    CERTIFIED. 

ihe  trial  of  said  cause;  and  that  the  same  may  be  filed  in  said  court;  and 
that  a  copy  of  such  certificate,  certified  by  the  clerk  of  said  court,  with  the 
decision  thereon,  and  the  final  decision  in  the  case,  may  be  certified  to  the 
appellate  court  {or  supreme  court),  and  filed  therein,  that  is  to  say: 

That  this  was  an  action  of  assiiuqisit,  and  an  attachment  issued  thereon 
in  favor  of  the  plaintiff,  and  was  levied  upon  the  real  estate  of  the  defendant. 
That  the  cause  assigned  in  the  aflidavit  for  issuing  of  the  attachment,  was 
that  the  defendant  was  a  non-resident  of  the  State  of  Illinois.  That  the  de- 
fendant appeai'ed,  and  filed  a  plea  in  abatement  to  the  writ,  denying  that 
at  the  time  of  the  issuing  of  the  writ,  he  was  a  non-resident  of  the  state. 

On  the  trial,  the  plaintiff  proved  that  at  the  time  the  writ  in  attachment 
was  issued,  which  was  on  the  20th  day  of  August,  1878,  the  defendant  was 
in  Minnesota,  and  had  been  there  since  he  left  Chicago,  in  April,  1878; 
and  to  sustain  the  allegation  of  his  affidavit,  he  testified  that  the  defendant 
told  him  before  he  left  Chicago,  that  he  was  going  to  Minnesota  to  reside 
permanently.  A  witness  also  testified  on  behalf  of  the  plaintiff,  that  a  few 
days  before  the  attachment  was  sued  out,  he  saw  the  defendant  in  Minne- 
apolis, who  then  told  him  that  he  intended  i-esiding  in  Minnesota,  and  had 
come  there  to  reside,  and  never  intended  to  return  to  Illinois  to  live. 

The  defendant,  to  prove  the  issue  raised  by  his  plea,  testified  that  he  did 
not  have  the  conversation  testified  to  by  plaintiff  and  his  witness;  that  he 
went  to  Minnesota  with  no  intention  of  residing  there,  but  upon  business; 
that  he  was  a  single  man,  and  always  intended  to  return  to  Chicago;  and 
did  return  there  a  short  time  after  this  suit  was  commenced,  and  has  re- 
sided there  ever  since. 

The  defendant  then  offered  to  read  in  evidence  the  deposition  of  G.  A., 
who  deposed  substantially  that  about  the  time  the  defendant  left  Chicago, 
he  told  him  he  was  going  away  that  afternoon  or  the  next  day,  to  St.  Paul 
or  Minnesota,  to  collect  money  that  was  due  him.  That  the  money  was 
due  and  he  did  not  expect  to  have  much  trouble,  and  that  he  would  not  be 
gone  a  great  while.  Also,  the  deposition  of  R.  B.,  who  deposed  that  in  the 
latter  part  of  March,  or  the  beginning  of  April,  a  few  days  before  the  de- 
fendant left,  he  had  a  conversation  with  him,  in  which  the  defendant  told 
him  that  he  was  going  to  make  a  trip  to  Minnesota  where  he  was  ac- 
quainted with  millers;  and  the  witness,  who  was  in  the  flouring  business, 
suggested  he  would  introduce  him  to  the  firm  of  G.  S.  &  Co. ,  for  the  pur- 
pose of  establishing  some  business  relations;  and  after  the  introduction, 
witness  thinks  the  defendant  suggested  that  on  his  return  he  would  make 
permanent  arrangements  with  the  firm  either  for  a  stipulated  salary  or  a 
certain  commission,  on  all  the  consignments  received  here  through  his  in- 
strumentality. And  also  the  deposition  of  E.  S. ,  who  testified  that  ki  the 
latter  part  of  April,  1878,  he  had  a  conversation  with  the  defendant,  who 
told  him  he  would  start  for  St.  Paul  to  arrange  some  business  matters  of 
which  he  had  previously  spoken,  about  a  certain  draft  of  $1,000,  which  was 
withheld,  and  also  to  make  arrangements  with  regard  to  shipments  of  flour 
to  this  market;  and  that  he  might  be  gone  two  weeks  or  a  month. 

To  the  reading  of  these  depositions,  and  each  of  them,  the  plaintiff  ob- 
jected, on  the  ground  that  such  evidence  was  incompetent;  and  the  com-t. 


AGREED   CASES — QUESTIONS   OF   LAW   CERTIFIED.  755 

sustaining  tlie  objection,  excluded  the  testimony  from  the  jury.  To  which 
ruHngs  of  the  court  the  defendant  then  and  there  excepted.  Whereupon  a 
verdict  was  rendered  for  the  plaintiff;  and  on  overruling  a  motion  in  writ- 
ing to  set  aside  the  verdict  and  for  a  new  trial,  to  which  the  defendant  ex- 
cepted, the  court  rendered  a  judgment  against  the  defendant. 

And  we,  the  attorneys,  as  aforesaid,  hereby  agree  and  certify  as  to  the 
questions  or  points  of  law  arising  in  the  case,  which  are  as  follows,  viz. : 

First.  Whether  or  not,  the  depositions  of  G.  A.,  R.  B.  and  E.  S.,  offered 
by  the  defendant,  and  excluded  by  the  court,  were  competent  testimony  in 
this  cause. 

Second.  Whether  or  not  the  court  erred  in  denying  the  defendant's  mo- 
tion to  set  aside  the  verdict  of  the  jury  and  for  a  new  trial,  on  the  ground 
of  the  refusal  of  the  court  to  permit  said  depositions  to  be  read  to  the  jury. 

Dated,  etc. 

E.  F.,  Attorney  for  Plaintiff. 
G.  H.,  Attorney  for  Defendant. 

No.  373.    Decision  of  the  judge  npon  the  questions  of  law  arising  in  case 
flnally  determined. 
(Under  Sec.  75,  Practice  Act.) 
{Venue,  and  title  of  cause  as  in  No.  367,  ante.) 

The  parties  litigant  having  assented  and  agreed  as  to  the  questions  or 
points  of  law  arising  in  this  cause,  and  the  same  having  been  certified  by 
the  counsel  or  attorneys  of  the  respective  parties,  who  have  signed  their 
names  thereto,  and  such  certificate  having  been  filed  in  this  court,  the  un- 
dersigned, judge  of  said  court,  does  determine  the  said  several  questions  or 
points  of  law  arising  in  the  case,  in  favor  of  the  plaintiff;  the  undersigned, 
as  such  judge,  holding  that  the  said  testimony  contained  in,  said  deposi- 
tions, and  each  of  the  same  was  incompetent;  and  that  the  court  did  not 
err  in  overruling  the  defendant's  motion  to  set  aside  the  verdict  of  the  jury 
and  for  a  new  trial,  on  the  gi-ound  of  the  refusal  of  the  court  to  permit  said 
depositions  to  be  read  to  the  jury. 

To  which  determination  of  the  court  the  plaintiff  then  and  there  excepted, 
and  prayed  an  appeal  to  the  appellate  court.  And  the  foregoing  questions 
or  points  of  law,  and  this  decision  thereon,  and  the  final  decision  in  this 
cause,  are  directed  to  be  certified  by  the  clerk  of  this  court  to  the  appellate 
court  of  this  state  for  review,  in  conformity  with  the  statute  in  such  case 
made  and  provided. 

Dated,  etc.  Judge. 

Kule  20  of  the  supreme  court,  and  rule  16  of  third  district 
appellate  court,  provide  that 

"  No  judgment  will  be  pronounced  in  any  agreed  case  placed 
upon  the  docket  of  this  court,  unless  an  affidavit  shall  be  filed 
setting  forth  that  the  matters  presented  by  the  record  were 
litigated  in  good  faith  about  a  matter  in  actual  controversy 


756  AGREED   CASES QUESTIONS   OF   LAW    CERTIFIED. 

between  the  parties,  and  that  the  opinion  of  this  court  is  not 
sought  with  any  other  design  than  to  adjudicate  and  settle  the 
law  relative  to  the  matter  in  actual  controversy  between  the 
parties  to  the  record."  ' 

No.  374.    Affidavit  that  matters  in  agreed  case  are  litigated  in  good  faith. 

(Venue,  and  title  of  cause  as  in  No.  367,  ante.) 

A.  B. ,  of,  etc. ,  on  oath  states  that  he  is  the  plaintiff  in  the  above  entitled 
cause;  that  the  matters  presented  by  the  record  in  said  cause  were  liti- 
gated in  good  faith  about  matters  in  actual  controversy  between  the  parties 
hereto;  and  that  the  opinion  of  this  court  is  not  sought  with  any  other  de- 
sign than  to  adjudicate  and  settle  the  law  relative  to  the  matters  in  actual 
controversy  between  the  parties  to  the  record. 

A.  B. 

Subscribed  and  sworn  to,  etc. 

1  93  111.  7;  52111.  App.  680;  Puterbaugh's  Ch.  PI.  &  Pr.  956. 


CHAPTER  XXIX. 


REFEREES. 


Referring  causes  by  agreement. — Section  1  of  the  act  of 

IS 72,  entitled  "  An  act  to  provide  for  referees  in  common  law 
cases," '  provides 

"  That  in  all  common  law  causes  in  courts  of  record,  after 
issue  joined  or  default  entered,  it  shall  be  competent  for  the 
court,  upon  agreement  of  the  parties  or  their  counsel,  to 
appoint  one  or  more  referees,  not  exceeding  three,  who  shall 
have  authority  to  take  testimony  in  such  cause,  and  report 
the  same  in  writing,  together  with  their  conclusions  of  law 
and  fact,  to  the  court,  and  the  court  shall  have  power  to 
render  judgment  upon  the  filing  of  such  report;  provided, 
either  party  may  except  to  such  report,  and  have  his  excep- 
tions heard  and  determined  by  the  court;  and  the  court  may, 
if  necessary  to  take  further  evidence,  refer  the  cause  back  to 
the  referees,  with  instructions.  Notice  of  the  time  of  hearing 
such  exceptions  and  taking  of  such  further  evidence  shall  be 
given  under  such  rules  as  the  court  may  prescribe." 

The  power  given  to  the  court  by  the  above  section  is  a 
discretionary  power,  with  the  exercise  of  which  the  appellate 
court  will  not  interfere  unless  it  is  clearly  shown  that  it  has 
been  abused.* 

The  proceeding  before  a  referee,  being  statutory,  must  in 
all  substantial  respects  pursue  the  statute,  or  it  can  not  be 
sustained.  The  statute  quoted  provides  for  the  selection  or 
appointment  of  no  referee  except  by  order  of  court.  It  author- 
izes no  report  by  a  referee  except  one  containing  the  evidence 
heard  and  giving  the  referee's  conclusions  thereon,  to  which 
the  parties  are  entitled  to  be  heard  on  exceptions.     If  the 

>  3  Starr  &  Curtis,  2003;  Rev.  Stat.  ^  p^pe  v.  People,  19  111.  App.  34. 

(1895)  1345;  Rev.  Stat.  (1893)  1161. 

(757) 


70»  KEFEEEES, 

report  fails  to  give  the  evidence  no  judgment  can  bo  entered 
on  it.' 

The  appointment  of  a  referee  to  try  a  common  law  contro- 
versy stands  upon  the  same  reason  as  the  reference  to  a  master 
of  a  similar  controversy  in  chancery,  and  the  proceedings 
should  be  similar.' 

Where  the  parties  to  a  suit  at  law  make  an  agreement  out 
of  court  to  submit  the  cause  to  a  third  person,  and  that  the 
court  shall  enter  judgment  on  the  finding  of  such  third  person, 
though  not  in  compliance  with  the  statute  in  reference  to 
arbitration,  or  that  concerning  the  appointment  of  a  referee, 
the  court  may,  by  mutual  consent,  enter  judgment  upon  the 
finding,  but  if  it  is  objected  to,  the  trial  must  proceed  as  at 
common  law. 

This  is  well  illustrated  by  reference  to  kindred  cases  where 
causes  pending  are  submitted  to  arbitration  with  an  agreement 
that  judgment  may  be  rendered  thereon  under  the  statute. 
In  such  cases  it  is  held  that  nothing  but  a  strict  substantial 
compliance  with  the  statute  will  authorize  the  court  to  enter 
ai  judgment  upon  the  award."  The  referee  is  an  officer  of  the 
court,  and  can  only  be  appointed  by  an  order  of  the  court.* 

Oath  of  referee. — It  has  been  held  that  the  taking  of  an 
oath  is  a  pre-requisite  to  the  power  of  an  auditor  or  referee 
to  proceed  with  his  duties,^  but  the  objection  will  be  deemed 
waived  by  the  appearance  of  the  parties  and  the  examination 
of  witnesses  without  objection." 

Exceptions  to  report — When  to  he  made. — Exceptions  to 
the  report  of  the  referee  must  be  made  in  the  court  from  which 
the  reference  is  taken.  Where  no  objections  are  taken  in  the 
court  below,  they  will  not  be  considered  in  the  appellate  or 
supreme  court  upon  appeal  or  writ  of  error.' 

^Morey  v.  3Iower  Co.,  90  111.  307.  ^  Pardridge  v.  Ryan,  134  III.   247: 

^  Pardridge  v.  Ryan,  35  111.  App.  but  see  same  case,  35  111.  App.  230. 

230.  ^Pardridge   v.  Ryan,  134  111.  247; 

^  Loiv  V.  Nolte,  15  III.  368;  Weinz  same  case,  35  111.  App.  230. 

V.    Dopier,    17    111.    Ill;  ilfore^    v.  ^  Stock   Yards  v.   Hirnrod,  88  111. 

Mower  Co.,  90  111.  307.  410;  Rape  v.  People,  19  lU.  App.  24; 

*  Hoflfman  on  Referees;  3Iorey  v.  Butler  v.  Cornell,  148  III.  276. 
Jfoii-er  Co.,  90  III.  307. 


REFEREES.  7o9 

The  report  and  findings  of  a  referee  under  tlie  statute  in  ref- 
erence to  the  facts,  are  regarded  in  the  same  light  as  the  verdict 
of  a  jury,  and  should  not  be  set  aside  or  disturbed,  except  upon 
such  grounds  as  would  justify  the  setting  aside  of  a  verdict 
and  granting  a  new  trial/ 

Attendance  of  witnesses — Oaths. — Section  2  of  the  same 
act  provides  that 

"  Witnesses  may  be  required  to  attend  and  testify  before 
such  referees  in  the  same  manner  as  is  or  may  be  provided  bv 
law  in  cases  before  masters  in  chancery;  and  such  referees  shall 
have  power  to  administer  oaths  to  witnesses." 

Judgment — Referee's  fees — Costs. — By  section  3,  it  is  pro- 
vided, that 

"  Upon  final  hearing  of  the  cause  the  court  shall  render 
judgment,  and  shall  tax  as  costs  against  the  unsuccessful  party 
such  fees,  for  the  services  of  the  referees,  as  shall,  in  the  judg- 
ment of  the  court,  be  reasonable  and  proper,  not  to  exceed 
$5  per  day;  provided,  that  whenever  the  parties  to  any  such 
suit,  or  their  counsel,  shall,  in  writing,  to  be  filed  in  court, 
agree  upon  a  larger  or  less  sum  per  day,  then  the  court  shall 
be  authorized  to  tax  as  part  of  the  costs  in  such  case  the  per 
diem  so  agreed  upon." 

Testimony — Record. — It  is  provided  in  section  4,  that 

"  All  testimony  taken  before  referees  shall  be  subscribed  by 
the  witnesses,  and  the  same,  together  with  all  exhibits  and 
papers  introduced  in  evidence,  and  the  report  of  the  referees, 
shall  be  included  in  and  form  a  part  of  the  record  of  the  cause." 

No.  375.    Agreement  to  refer  cause  to  referees. 

In  the Circuit  Court. 

Term,  A.  D.  18— 

A.  B.  ) 

vs.  >  In  Assumpsit. 
C.  D.  \  The  above  named  plaintiff  and  defendant  hereby  mutually 
agree  that  the  court  may  appoint  one  or  more  referees,  not  exceeding 
three,  to  be  authorized  to  take  the  testimony  in  such  cause,  and  report  the 
same  in  writing,  together  with  their  conclusions  of  law  and  facts,  to  the 
court,  in  pursuance  of  the  statute  in  such  case  made  and  provided. 
Dated,  etc.  A.  B. 

C.  D. 

^  Scott  V.  Maxwell,  \%  Til.  App.  72;      v.   Sutrick,  22    Cal.    471;  Edwards 
Butler  V.  Cornell,  148  111.  276;  Keller      on  Eeferees,  131. 


7G0  KEFEREES. 

No.  376.     Order  cq^pointing  referee. 

(Title  of  cause.) 

Upon  the  agreement  of  the  parties  hereto,  it  is  ordered  that  E.  F.  be.  and 
he  is  hereby  appointed  referee,  witli  authority  to  take  testimony  in  this 
cause,  and  report  the  same  in  writing,  together  with  his  conclusions  of  tlie 
law  and  facts  in  this  cause,  to  the  court;  pursuant  to  the  statute  in  such 
case  made  and  provided. 

No.  377.     Report  of  referee  in  favor  of  the  plaintiff. 

{Venue  and  title  of  cause.) 

To  the  Honorable  Judge  of  said  court: 

In  pursuance  of  an  order  of  this  court  made  in  the  above  entitled  cause, 
on,  etc.,  appointing  the  undersigned  referee,  with  authority  to  take  testi- 
mony in  this  cause,  and  report  the  same  in  writing,  together  with  his  con- 
clusions of  the  law  and  facts  in  said  cause,  to  the  court,  the  undersigned, 
referee,  respectfully  reports,  that  having  first  given  a  written  notice  to  the 
said  pai'ties,  respectively,  of  the  time  and  place  when  and  where  the  said 
testimony  would  be  taken,  and  caused  to  come  before  him,  as  such  referee, 
all  such  witnesses  as  the  respective  parties  desired  or  made  known  to  him, 
and  having  been  attended  by  the  attorneys  of  the  respective  parties,  the  un- 
dersigned, as  such  referee,  did,  on,  etc.,  at,  etc.,  proceed  to  take  the  testi- 
mony of  the  respective  parties;  and  the  several  witnesses  attending,  having 
been  severally  sworn  and  examined,  he,  as  such  referee,  reduced  their  tes- 
timony to  writing,  and  herewith  reports  the  same,  to  be  filed  in  said  cause. 

The  undersigned  would  further  report,  that,  having  examined  the  law 
and  facts  in  said  cause,  he  reports  his  conclusions  thereon  as  follows,  that  is 
to  say : 

Uj)on  the  facts  in  the  case  he  concludes  and  finds: 

First.     That,  etc.     {Here  insert  the  facts  as  found.)  ^ 

Second.     That,  etc.     (And  so  on.) 

And  upon  the  law  of  the  case  his  conclusions  are: 

First.     That,  etc. 

Second.  That,  etc.  (And  so  on,  inserting  the  conclusions  of  the  referee 
upon  each  legal  point.) 

The  undersigned,  as  such  referee,  finds  ( * )  that  there  is  due  to  the  plaint- 
iff. A.  B.,  from  the  defendant,  C.  D.,  the  sum  of dollars,  besides  the 

costs  of  suit. 

All  of  which  he,  as  such  referee,  respectfully  reports  to  the  court. 

Dated,  etc.  E.  F.  Referee. 

No.  378,    Report  of  referee  in  favor  of  the  defendant. 

(As  in  the  last  form  to  the  (*),  and  then  as  follows:)  that  there  is  nothing 
due  from  the  defendant,  CD.,  to  the  plaintiff,  A.  B. 
All  of  which,  etc.     (As  in  the  last  form.) 


KEFEKEES.  761 

No.  379.    Exceptions  to  report  of  referee. 

{Venue  and  title  of  cause.) 

Exceptions  of  the  defendant  (or  plaintiff)  to  the  report  of  the  referee, 
filed  in  said  cause,  on,  etc. 

First.     For  that  the  said  referee  in  his  first  findings  of  fact  has  erro- 
neously found,  etc.    (Here  insert  the  ground  of  exception.) 

Second.     For  that  tlie  said  referee  in  his  second  findings  of  fact  has  erro- 
neously found,  etc. 

Third.     For  that,  etc.,  {and  so  on.) 

Fourth.     For  that  the  following  facts  are  not  stated  in  the  findings  of 
fact  in  the  said  report,  viz.:    That,  etc.,  {here  insert.) 

Fifth.     For  that  the  first  of  the  conclusions  of  law  contained  in  the  said 
report  is  erroneous. 

Sixth.    For  that  the  second  of  the  conclusions  of  law  contained  in  the 
said  report  is  erroneous. 

Seventh.     For  that  the  said  report  is  in  favor  of  the  plaintiff  {or  defend- 
ant), whereas  it  should  have  been  in  favor  of  the  defendant  {or  plaintiff). 

Eighth.     For  that  the  following  conclusions  of  law  upon  the  facts  in  the 
case  are  not  contained  in  the  said  report,  viz.:    That,  etc.     {Here  insert.) 

Wherefore  the  defendant  {or  plaintiff)  excepts  to  the  said  report,  and 
appeals  therefrom  to  the  judgment  of  this  court. 

,  Attorney  for . 


CHAPTER  XXX. 

ATTORNEYS  AND  COUNSELORS  AT  LAW. 

An  attorney  at  law  is  an  officer  of  a  court  of  justice,  who  is 
employed  by  a  party  in  a  cause  to  manage  the  same  for  him. 
Appearance  by  an  attorney  has  been  allowed  in  England  from 
the  time  of  the  earliest  records  of  the  courts  of  that  country. 
They  are  mentioned  in  Glanville,  Bracton,  Fleta  and  Britton; 
and  a  case  turnino-  upon  a  party's  right  to  appear  by  attor- 
ney is  reported  in  the  Year  Book,  17  Edw,  III.,  A.  D.  1344.' 

It  results  from  the  nature  of  their  functions,  and  of  their 
duties,  as  well  to  the  court  as  to  the  client,  that  no  one  can, 
even  by  consent,  be  the  attorney  of  both  the  litigating  parties 
in  the  same  controversy.' 

The  name  of  attorney  is  given  to  those  officers  who  practice 
in  courts  of  common  law;  solicitors  in  courts  of  equity;  and 
proctors  in  courts  of  admiralty,  and  in  the  English  ecclesias- 
tical courts.^ 

How  admitted. — The  question  as  to  who  may  be  admitted 
as  an  attorney,  is  to  be  determined  by  the  rules  and  regula- 
tions established  on  the  subject  in  the  several  states.  Every 
state  in  the  Union  has  laws  by  which  the  right  to  practice  in 
its  courts  may  be  granted,  and  the  right  is  very  generally 
made  to  depend  upon  good  moral  character,  the  learning,  and 
professional  skill  of  the  party  on  whom  the  privilege  is  con- 
ferred. The  right  to  admission  in  no  sense  depends  upon  citi- 
zenship of  the  United  States.*  But  a  citizen  of  one  state  is 
not  entitled,  as  a  matter  of  right,  to  admission  to  the  bar  of 
another  state.' 

11  Bouv.  L.  D.  140.  wood  v.   R.   R.    Co.,  15  Barb.  650; 

^See  Bac.  Abr.,  tit.  Attorneys,  c;      Price  v.  Railroad,  18  Ind.  137. 
Valentine  v.  Stewart,   15  Cal.  387;         ^  j  b^u^  l  D.  206. 
Com.  V.  Gibbs,  4  Gray  146;  Sher-         *  Bradwell  v.  State,  16  Wall.  130. 

^Matter  of  Henry,  40  N.Y.  560. 
(762) 


ATTOKNEYS    AND    COUNSELORS   AT   LAW.  T63 

Qualifications. — Attorneys  are  officers  of  the  court,  admitted 
as  such  by  its  order  upon  evidence  of  their  possessing  suf- 
ficient legal  learning  and  fair  private  character.  It  is  the 
general  practice  in  this  country  to  obtain  this  evidence  by  a 
personal  examination  of  the  parties  making  application  for 
admission.  And  where  the  law  provides  for  an  examination 
of  applicants  for  admission  to  the  bar,  before  their  admission, 
a  candidate  ought  not  to  be  admitted  without  attendino-  in 
person  at  the  time  of  the  hearing,  even  when  physically  dis- 
abled at  the  time  from  coming.* 

In  regard  to  the  inquiry  as  to  the  moral  character  of  an 
applicant  for  admission,  the  court  is  not  limited  to  the  certifi- 
cate, but  may  look  behind  it,  and  is  bound  to  do  so  in  cases 
attended  with  suspicious  circumstances.^ 

Eule  2  of  the  supreme  court  of  the  United  States  provides 
that 

"It  shall  be  requisite  to  the  admission  of  attorneys  or  coun- 
selors, to  practice  in  this  court,  that  they  shall  have  been  such 
for  three  years  past  in  the  supreme  courts  of  the  states  to 
which  they  respectively  belong,  and  that  their  private  and 
professional  character  shall  appear  to  be  fair." 

In  this  state  a  candidate  for  examination  must  have  pur- 
sued a  regular  course  of  law  study  in  the  office  of  some  lawyer 
in  general  practice  for  at  least  two  years.  If  such  applicant 
shall  have  been  in  attendance  in  a  law  school  as  a  student  at 
law,  the  time  thus  spent  may  be  considered  as  a  part  of  the 
two  years.  If  the  ap))licant  presents  a  diploma  regularly 
issued  by  any  law  school,  regularly  organized  under  the  laws 
of  this  state,  whose  regular  course  of  law  studies  is  two  years, 
and  requiring  an  actual  attendance  by  the  student  of  at  least 
thirty-six  weeks  in  each  of  said  years,  he  may  be  admitted 
upon  such  diploma  without  examination. 

No  recovery  can  be  had  by  any  unlicensed  attorney  for  serv- 
ices rendered  in  a  court  of  record,  notwithstanding  a  con- 
tract providing  therefor.' 

'  Ex  parte  SnelUng,  44  Cal.  553;  Y.  67;   Strother  v.  Missouri,  1  Mo. 

1  Wait's  Ac.  &  Def.  432.  605. 

^Attorney's   License,    21    N.    J.,  ^  City  v.  Freeh,   17  111.  App.   339; 

Law  345;  Matter  of  Cooper,  22  N.  Sellers  v.  Phillips,  37  111.  App.   74; 


764:  ATTORNEYS   AND   COUNSELORS    AT    LAW. 

As  to  licensing  attorneys  and  penalties  for  misconduct,  see 
Puterbaug-h's  Ch.  PL  &  Pr. 

Authority  of  attorneys,  etc. — The  mere  appearance  of  an 
attorney  is  generally  deemed  sufficient  for  the  opposite  part}'-, 
and  for  the  court,  who  will  look  no  further,  and  will  proceed 
as  if  he  had  sufficient  authority,  and  leave  any  party  who  may 
be  injured  to  his  action  against  the  attorney,  unless  there  ap- 
pears to  be  fraud  or  collusion  in  the  case.'  The  public  office 
which  he  bears,  the  oath  under  which  he  acts,  and,  it  may  be 
added,  the  experience  of  the  general  integrity  and  fidelity  of 
the  profession,  have  operated  to  establish  a  usage,  and  make 
that  usage  law,  that  except  in  extreme  cases,  the  appearance  of 
an  attorney  for  a  party  will  in  general  bind  him,"  The  case 
is  strongly  analogous  to  that  of  sheriffs  and  other  returning 
officers.  Their  returns  are  taken  to  be  true,  and  are  not  per- 
mitted to  be  contradicted;  and  if  false,  the  remedy  is  by  an 
action  against  them.  Kent,  C.  J.,  says,  that  "  by  licensing 
attorneys,  the  courts  recommend  them  to  the  public  confi- 
dence; and  if  the  opposite  attorney,  in  the  business  of  a  suit, 
must  always,  at  his  peril,  look  beyond  the  attorney  to  his  au- 
thority, it  would  be  productive  of  great  public  inconvenience."  ^ 

An  attorney  at  law,  when  acting  in  good  faith,  and  his  client 
makes  no  objection  to  his  management  of  the  cause,  has  the 
power  to  waive  or  withdraw  a  defense  and  consent  to  judg- 
ment but  not  to  fraudulently  sell  out  his  client's  interests  to 
the  opposite  party;  and  the  courts  will  protect  suitors  from 
the  treachery  of  their  solicitors,  as  far  as  possible.* 

The  authority  of  an  attorney  to  appear  in  a  case  will 
always  be  presumed,  until  the  contrary  appears; '  but  where  the 

Tedrick     v.    Hiner,     61     111.    189;  ^  Hart  v,  Waterhouse,  1  Mass.  4:S?<; 

Hughes  V.Dougherty,  62m.  ApiiAU.  8  Mass.    113;   Foster  v.    Wiley,    27 

I  Smith  V.  Steivart,  6  Johns.  34;  Mich.   244;  Moulton  v.  Bowker,  115 

Denton  V .  Noyes,  6  Johns.   296;  Os-  Mass.  36. 

born  V.  Bank,  9  Wheat.  738;    Wil-  ^Denton  v.  Noyes,  6  Johns.    302; 

liams  V.  Butler,  35  111.  544;  Rust  v.  Rice  v.  Wilkins,  21  Maine  558;  Ryan 

Frothingham,     Breese  331;    Cham-  v.  Doyle,  31   Iowa  53;   Cameron   v. 

bers  V.  Hodges,  23  Tex.  104;  Lawson  Stratton,  14  Bradw.  270. 

V.  Bettison,  12 Ark.  401;  Sampsonv.  *C.  B.  Soc.  v.  Hass,  111  111.  176. 

Ohleyer,    22  Cal.    200;    Moulton  v.  ^Ransom  \.  Jones,  1  Scam.   291; 
Bowker,  115  Mass.  36. 


ATTOKNEYS    AND    COUNSELOKS    AT    LAW.  765 

court  is  satislied  that  an  attorney  has  commenced  a  suit  in  the 
name  of  another,  without  authority,  the  suit  will  be  dismissed.' 
Whatever  may  be  the  true  rule  in  regard  to  the  question  as  to 
what  extent,  for  what  purposes  and  under  what  circumstances 
a  party  for  whom  an  appearance  to  a  suit  has  been  entered 
can  deny  the  authorit}^  of  the  attorney,  and  ask  relief  from  the 
court,  the  claim  to  do  so  is  viewed  with  great  disfavor  by 
courts,  whenever  innocent  third  parties  have  acquired  rights 
under  the  judgment  or  decree.'^ 

Where  an  attorney  enters  the  appearance  of  a  defendant 
without  authority  a  judgment  or  decree  based  upon  such  act  is 
void,  and  may  be  collaterally  attacked.^  If  it  is  desired  to 
raise  the  question  of  the  authority  of  an  attorney  to  appear 
and  plead  for  such  parties  as  he  claims  to  represent,  it  may  be 
done  by  affidavit;  and  the  court  will  hear  counter  affidavits 
upon  the  question.*  The  court  will  order  an  attorney  to  show 
his  authority  to  sue,  when  a  due  regard  to  the  rights  of  the  de- 
fendant seems  to  demand  it.^  But  the  reasons  must  be  strong. 
If  a  respectable  and  responsible  attorney  appears  for  a  party, 
the  court  will  not  ordinarily  inquire  into  the  fact  whether  he 
was  actually  authorized  to  appear  or  not.^ 

The  rule  that  the  authority  of  an  attorney  will  be  presumed, 
and  his  acts  binding  on  the  person  for  whom  he  appears,  has 
not  been  applied  to  acts  and  transactions  out  of  court.'  An 
attorney  who  is  employed  to  defend  a  suit  is  not  authorized 
to  confess  a  judgment  against  his  client  without  his  consent.* 
But  where  he  has  been  employed  in  anticipation  of  a  suit  he 
may  waive  service  on  his  client.^ 

In  an  action  upon  a  record  of  a  foreign  judgment,  which 

Lawrence  V.  Jarvis,  ^2  111.  dOA;  Reed  *Reed  v.   Curry,   35  111.  536;  see 

V.    Curry,   35  111.    536;  Williams  v.  Harris  v.   Galbraith,    43  111.    309. 

Butler,  35    111.  544;  Harris  v.    Gal-  ^  Frye  v.  County.  14  111.  132. 

braith.  43  111.  309;  see  Sanderson  v.  « Republic  v.  De  Arangois,  5  Duer 

LaSaZZe,  117111.  171.  (N.  Y.)   643;    Miller     v.  Lane,     13 

'  Frye  v.   County,  14   111.  132;  see  Bradw.  648. 

Williams  v.  Butler,  35111.  544;  Fence  '  Hart  v.  Waterhouse,  1  Mass.  433; 

Co.  V.  Wernsing,  19  Bradw.  42.  Brooks  v.  Kerns,  86  111.  547. 

^Kenyon  v.  Shreck,  52  111.  382.  «  People  v.Lamborn,  1  Scam.  124. 

^Griggs    v.    Gear,    3     Giltn.      2;  ^ Hefferman    v.   Burt,    7    Clarke 

Bruschke  v.  Verein,  145  111.  433.  (Iowa)  320. 


766  ATTORNEYS   AND    COUNSELORS   AT    LAW. 

shows  that  there  was  no  service  of  process,  but  that  the  ap- 
pearance of  the  defendant  was  entered  by  an  attorney,  it  may 
be  shown  that  the  attorney  who  entered  the  appearance  did  so 
without  authority,  and  thereby  a  recovery  upon  the  judgment 
may  be  defeated/ 

An  attorney  employed  to  collect  a  debt  can  only  obtain 
judgment,  have  execution  issued,  and  receive  and  receipt  for 
the  proceeds.  He  can  not  compromise  the  debt,  give  day  of 
payment,  or  receive  a  less  amount,  or  anything  but  money  in 
satisfaction.^  He  has  no  power  to  sell  his  client's  judgment; 
and  an  attempted  sale  will  only  bind  the  client  when  the  act 
is  ratified  or  adopted  by  the  receipt  of  money,  or  otherwise.* 
Nor  has  an  attorney  a  right  to  give  up  securities  of  his 
client,  without  actual  payment,  or  special  authority.* 

In  ordinary  cases,  where  an  attorney  is  employed  to  take 
the  care  and  management  of  a  suit,  he  has  a  right  to  consider 
his  employment  as  continuing  to  the  end  of  the  litigation  in 
that  court,  unless  discharged  by  his  client.^  But  the  power  of 
an  attorney  ceases  upon  the  termination  of  the  relation,  after 
which  any  and  all  acts  of  an  attorney,  whether  in  the  matter 
of  receiving  the  benefits  of  a  judgment  or  decree,  or  releasing 
errors  of  record,  or  otherwise,  are  unwarranted,  and  do  not 
bind  the  client."  The  mere  employment  of  an  attorney  to  at- 
tend to  a  cause  in  an  inferior  court,  does  not  authorize  his 
appearance  in  the  same  cause  on  appeal  to  a  higher  tribunal.^ 

Authority   of,  can  not  be  delegated. —  The   authority  of 

'  Thompson  v.  Emmert,  15  111.415;  73  111.  415;  Isaacs  v.  Ziigsmith,  103 

see  Bimeler  V.  Daivson,  4:  Scam.  ^iSd;  Pa.   St.  77;   Ins.  Co.  v,  Buchanan, 

Welch  V.  Sykes,  3  Gilm.  197;  Whit-  100  Ind.  63. 

taker  v.  Murray,  15  111.  293.  « Rowland  v.  Slate,  58  Penn.  St. 

"■Nolan  V.   Jackson,    16  111.   272;  \96;  Vickery  v.  3IcClellan,  dl  111.311 

Stokely  v.  Robinson,  34  Penn.  315;  Locheiimeyer  v.  Fogarty,  112  111.  512 

State  V.  Hawkins,  28  Mo.  366;  3Iil-  *  Terhune  v.  Colton,  2  Stockt.  (N 

lew.  Lane,  13  Bradw.  648;   Wether-  J.)  21;   Jeter  v.   Haviland,  24  Geo 

bee  V.  Fitch.  117  111.  67;  Stocking  v.  252;  C.  B.  Soc.  v.  Haas,  111  111.  176, 

Knight,l%Bvai(l\v.^Ol;seeTruinhull  ^  Langdon  v.   Tower,   30  Vt.  285 

V.   Nicholson,    27   111.    U9;  Jeter  y.  Phillips  v.  Edsall,  121111.  535. 

Haviland.  24  Geo.  252;  Jonesv.Wol-  ^Ruckmanv.  Ahvood,  4A  111.  183 

cott,    2     Allen    247;     Chapman    v.  see  Ruckman  v.  Alwood,  40  111.  128 

Cowles,  41  Ala.  103;  Ruckman  v.  Al-  Cameron  v.  Stratton,  14  Bradw.  270, 

wood,  44  111.  183;  Wadhams  v.  Gay,  '  Covill  v.  Fhy,  24  lU.  37. 


ATTOENEYS    AND    COUNSELORS    AT    LAW.  767 

an  attorney  is  personal,  and  can  not  be  delegated  to  an- 
other.' 

If  a  person  engages  the  services  of  an  association  of  law3^ers, 
he  is  entitled  to  the  services  of  every  one  of  them;  and  if  one 
abandons  the  retainer  with  the  assent  of  the  others,  express  or 
implied,  or  they  attempt  to  supply  his  place  with  another 
attorney  (though  of  equal  or  superior  qualifications,)  it  will 
be  no  performance  of  the  contract.-  It  is  personal,  and  can 
not  be  delegated  to,  or  performed  by,  another.-  So  if  attor- 
neys who  are  partners  accept  a  retainer,  the  contract  is  joint, 
and  continues  to  the  termination  of  the  suit;  and  neither  can 
be  released  from  the  obligation  or  responsibility  assumed, 
either  by  a  dissolution  of  their  partnership,  or  by  any  other 
act  or  agreement  between  themselves,^  and  the  client  will  be 
entitled  to  the  services  of  all.* 

Retainer,  etc. — It  requires  a  retainer,  or  fee  paid,  to  con- 
stitute the  relation  of  attorney  and  client;  ^  and  an  attorney 
can  not  recover  for  services  rendered  as  such,  unless  he  can 
show  an  employment  or  retainer."*  It  is  not  essential,  how- 
ever, to  the  right  of  recovery  for  professional  services,  that 
there  should  be  an  express  request;  but  if  the  services  were 
rendered  under  such  circumstances  as  will  reasonably  imply 
that  they  were  performed  with  the  assent  and  at  the  request 
of  the  client,  a-  recovery  therefor  may  be  had.^ 

Agreements. — All  agreements  made  by  an  attorney  with 
the  opposite  party,  and  entered  of  record,  or  made  in  writ- 
ing and  filed  with  the  papers  in  the  cause,  are  binding  on  his 
client.  As  to  agreements  not  in  writing,  there  may  be  doubts 
how  far  the  courts  will  enforce  them,  or  whether  the  perform- 
ance must  not  be  left  to  the  honor  of  the  attorney.  As  a 
general  rule,  courts  refuse  to  enforce  agreements  made  be- 
tween attorneys,  where  the  same  are  not  in  writing,  or  en- 

'  Cornelius  v.  Wash,  Breese  98,  *  Bank  v.  Miller,  47  111.  App.  310. 

^Morgan  v.    Roberts,   38  111.    65;  ^  DeWolf  v.  Strader,  26  111.  225; 

Davis  V.  Peck,  54  Barb.  425.  Davis  v.  Peck,  54  Barb.  425;  Cavil- 

»  Walker  v.  Goodrich,  16  111.  341;  land  v.  Yale,  3  Cal.  108;    see  John- 
Smith  V.  Harvie,  31  111.  62;    McGill  ston  v.  Broim,,  51  111.  App.  549. 
V.  McGill,  2  Mete.  (Ky.)258;  Moshier  «i2.  R.  Co.  v.  Lamed,  26  111.  218. 
V.  Kitdidl,  87  111.  18.  ^  Cooper  v.  Hamilton,  52  111.  120. 


7GS  ATTOKNEYS   AND   COUNSELORS    AT   LAW. 

tered  of  record.'  They  are,  and  should  be,  discouraged.  In 
case  of  the  death  or  change  of  the  attorney  who  made  them, 
his  successor  and  the  client  would  be  without  means  of  know- 
ing them.  If  clearly  proved,  however,  the  court  will  see  that 
the  opposite  party  does  not  suffer,  and  perhaps  performance 
would  be  compelled;  but  there  is  so  much  danger  of  mistake 
and  disagreement,  and  attorneys  so  frequently  differ  with  re- 
spect to  them,  that  it  should  be  invariably  required  that  all 
important  agreements  should  be  put  in  writing,  or  entered  of 
record. 

Admissions. — Admissions  made  by  attorneys,  with  a  view 
to  their  being  used  as  evidence,  may  be  so  used;  ■'  but  casual 
admissions  in  the  course  of  conversation,  or  not  for  that  pur- 
pose, are  not  evidence  against  the  client.  An  admission 
which  is  made  for  the  purpose  of  a  trial,  is  regarded  as  a  stip- 
ulation of  the  party  making  it  that  the  fact  about  which  it 
is  made  exists,  and  he  is  estopped  from  denying  it.' 

Termination  of  employment. — The  relation  of  attorney 
and  client  is  one  of  mutual  trust,  confidence  and  good  will; 
and  any  conduct  on  the  part  of  the  attorney  which  must  nec- 
cessarily  put  an  end  to  these,  justifies  the  client  in  terminating 
the  relation  by  notice  to  the  attorney.* 

DUTIES  AND  LIABILITIES. 

The  duties  of  an  attorney  are  care,  skill  and  integrity.  If 
he  is  not  deficient  in  these  requisites,  he  is  not  responsible  for 
any  error  or  mistake  arising  in  the  exercise  of  his  profession;* 
but  a  deficiency  in  skill  or  care,  by  which  a  loss  ensues  to  his 
client,  renders  an  attorney  liable.*     He  will  be  held  liable  for 

1  Oliver  V,  Hart,  35  111.  55;  Brook-  Burnham  v.  Smith,  11  Wis.  258; 
heim  v.  Ins.  Co.,  38CaI.  633;  Rogers  Patterson  v.  Ely,  19  Cal.  28;  Rogers 
V.  Greenwood,   14    Minn.  333;    but      v.  Greenwood,  14  Minn.  333. 

see  Ry.    Co.  v.  Hintz,  132  111.265;  *  Arrington v.  Sneed,  IS  Texas  135. 

Thompson  on  Trials,  S§  193,  200.  n  Tidd's  Pr.  225;  Pitt  v.  Yalden, 

2  Bank  v.  Sprigg,  11  Md.  389;  2  4  Burr.  2060;  see  People  v.  Ford,  54 
StarkieEv.    136;  Smith  w.  Dixon,  3  111.520. 

Mete.  (Ky.)  438;  Yost  v.  Devaidt,  9  ^  Hastings    v.    Halleck,    13    Cal. 

Iowa  60.  203;  Swatinel  v.  Ellis,  1   Bing.   347; 

3  Mason    v.  Park,   3  Scam.  532;    ■  Goodman  v.  Walker,   30  Ala.    483; 


ATTOENETS    AND   COUNSELORS    AT    LAW,  769 

atiy  loss  occasioned  by  a  disobedience  of  the  lawful  instructions 
of  his  client.' 

If  an  attorney  becomes  the  instrument  for  prosecuting  and 
imprisoning  a  party  against  whom  he  knows  his  client  has  no 
just  claim  or  cause  of  arrest,  but  is  actuated  by  malicious  mo- 
tives, he  is  liable  to  the  injured  party .^ 

Duty  to  court. — While  an  attorney  at  law  owes  his  client 
the  duty  of  fidelity,  he  also  owes  the  duty  of  good  faith  and 
honorable  dealing  to  the  court  before  whom  he  practices.  He 
is  an  officer  of  the  court,  and  his  high  vocation  is  to  correctly 
inform  the  court  upon  the  law  and  the  facts  of  the  case,  and 
to  aid  it  in  doing  justice.  He  violates  his  oath  of  office  when 
he  resorts  to  deception  or  permits  his  client  to  do  so.  He  is 
under  no  obligation  to  seek  to  obtain  for  his  client  that  which 
is  forbidden  by  the  law.^ 

Ought  not  to  be  a  witness  for  his  client. — It  is  regarded  as 
of  very  doubtful  professional  propriety  for  an  attorney  to  be- 
come a  witness  for  his  client,  without  first  entirely  withdraw- 
ing from  any  further  connection  with  the  cause.  An  attorney 
occupying  the  attitude  of  both  witness  and  attorney  for  his 
client,  subjects  his  testimony  to  criticism,  if  not  suspicion.* 

It  is  sometimes  indispensable  that  an  attorney,  to  prevent 
injustice,  should  give  evidence  for  his  client.  It  has  therefore 
been  held  in  numerous  cases  that  the  attorney  in  a  cause  is 
not,  because  such,  disqualified  from  being  a  witness;  ^  even 
though  his  fee  depends  on  his  success;  ^  and  though  he  expects 
a  larger  fee  if  he  succeeds.'     But  the  practice  of  an  attorney 


Barter  v.  Morris,  18  Ohio  St.  493 
Kiramell  v.  Bitner,  63  Penn.  303 
Stevens     v.     Walker,    55     111.    151 


*  Ross  V.  Demoss,  45  111.   447;   see 
Morgan  v.  Roberts,  38  111.  65. 
5  Cobbett  V.  Hudson,  23  L,  J.  Q.  B. 


Hughes  v.Ziegler,  69111.  38;  Newman  11;  Cobbett  v.  Hudson,  Ell.  &  B.  11; 

V.  Schueck,  58  111.  App.  338.  Chartiers  v.  McNamara,  73  Penn. 

'  Gilbert  v.  Williams,  8  Mass.  57;  St.  278;  Ball.v.  Renfro,  3  Mete.  (Ky.) 

Nave  V.  Baird,  12  Ind.  318;    People  51;  Robinson  v.  Dauchy,  3  Barb.  20. 

V,  CoZe,  84  111.  337.  '^Newman   v,    Bradley,    1    Dall. 

^Burnap    v.    3Iarsh,   13  111.   535;  (Penn.)  841. 

Revitt  V.  Pettitt,  3  Mete.  (Ky.)  314;  '  Boulder  v.  Hebel,  17  S.  &  R.  33; 

Stockley  v.  Hor  ridge,  34  Eng.  C.  L.  Miles  v.  OHara,  IS.  &  R.  32;    Mc- 

276;    see  Moir  v.  Hopkiiis,    16  111.  Geliee  v.  Hansell,  13  Ala.    17;    Slo- 

313;  Hardy  v.  Keeler,  56  111.  153.  cum  v.  Newby,  1  Mui-ph.  (N.  C)  423. 

^People  V.   Beattie,  137  111.  553. 
49 


770  ATTOENEYS    AND    COUNSELORS    AT    LAW. 

testifying  or  making  affidavit  for  his  client,  is  considered  ob- 
jectionable,' and  should  be  discountenanced  as  far  as  possible, 
by  the  courts  and  counsel.' 

In  Little  v.  McKeon,  1  Sandf.  607,  the  court  said:  "As  to  the 
effect  of  this  practice  upon  the  character  of  the  bar,  we  think 
the  evil  will  work  its  own  cure.  Attorneys,  as  well  as  coun- 
selors, of  standing  and  character,  will  never,  except  in  ex- 
treme cases,  present  themselves  before  a  jury  as  witnesses  in 
their  own  causes  on  litigated  questions,  and  in  such  cases  only 
on  some  unforeseen  necessity.  Those  gentlemen  of  the  bar 
who  habitually  suffer  themselves  to  be  used  as  witnesses  for 
their  clients,  soon  become  marked  both  by  their  associates 
and  the  courts,  and  forfeit  in  character  more  than  Avill  ever 
be  compensated  to  them  by  success  in  such  client's  contro- 
versies." 

Acting  in  anotlier  capacity. — A  solicitor  in  a  case  can  not 
act  as  a  special  master  to  execute  the  decree.'  And,  as  a  gen- 
eral rule,  a  receiver  in  a  cause  can  not  appoint,  as  his  attorney, 
the  attorney  of  either  party.*  And  so  a  person  who  is  adminis- 
trator of  an  estate  can  not  act  as  an  attorney  in  the  prosecu- 
tion of  claims  against  the  same  estate.* 

Can  not  act  on  opposite  sides. — An  attorney  owes  to  his 
client  fidelity,  secrecy,  diligence  and  skill;  and  he  can  not, 
therefore,  serve  professionally,  both  parties  to  the  controversy, 
nor  accept  a  reward  from  the  other  side.*  So  an  attorney  is 
never  allowed  to  change  sides  in  the  same  cause,  though  at  dif- 
ferent trials.'  But  where  an  attorney,  in  the  course  of  other 
business,  had  obtained  a  knowledge  of  matters  connected  with 
the  suit  in  question,  he  will  not  generally  be  prevented  from 

^Sfratton  v.  Henderson,   26    111.  *1  "Wait's  Pr.    243;    Herrick   v. 

68;  Spencer  v.  Kinnard,  12 Tex.  180.  Catley,  1  Daly  (N.  Y.)  512;  Herrick 

^State  V.  Woodside,  9  Ired.  (N.  C.)  v.  Catley,  30  How.  (Pa.)  208;  Sher- 

496;  Frearv.  Drinker,  8  Penn.   St.  wood  v.  R.   R.  Co.,  15  Barb.  (N,  Y.) 

520.  650. 

3  White  V.  Hoffaker,  27  111.  349.  '  Valentine  v.  Stewart,  15  Cal.  387; 

*  Branch  v.  Hai^rington,  4:9(Row.)  Gaiddenv.   State,  11  Ga.  47;  Com- 

N.  Y.  196;   Warren  v.   Sprague,   4  inonw.  v.  Gibbs,  4  Gray  (Mass.)  146; 

Edw.  Ch.  (N.  Y.)  416.  Price  v.  R.  R.  Co.,  18  Ind.  137. 

'  Spi7iks    V.    Davis,   32  Miss.  152; 
see  Bruce  v.  Dickey,  116  111.  527. 


ATTORNEYS    AND    COUNSELORS    AT    LAW.  771 

acting  against  the  party  through  whose  business  he  obtained 
such  knowledge,  and  counsel  may  act  as  such  at  the  same  time 
for  both  parties  to  a  transaction;  and  the  fact  that  a  contract 
is  drawn  by  and  under  the  advice  of  one  who,  at  the  time,  is 
counsel  for  one  of  the  parties,  when  such  fact  is  known  to  the 
other  part}'-,  does  not,  in  the  absence  of  evidence  of  fraud  or 
unfairness,  invalidate  or  affect  the  contract.' 

Liability  to  third  persons. — One  who  suffers  an  injur}^  by 
an  unauthorized  appearance  of  an  attorney  for  him,  has  a 
remedy  by  action  against  the  attorney."  So  an  attorney  and 
his  client  are  both  liable  for  an  execution  illegally  issued  by 
the  former.* 

An  attorney  may  so  act  under  his  general  employment  to 
enforce  a  legal  claim,  as  to  render  himself  alone  liable  for  a 
malicious  prosecution  or  arrest.*  He  does  not,  however,  incur 
any  civil  liability  for  ordering  a  levy  on  property,  if  he  acts 
in  good  faith  and  on  reasonable  cause.*  And  he  is  not  charo-e- 
able  with  a  trespass  of  the  constable  who  has  charge  of  the 
execution.'  Nor  is  he  responsible  for  conveying  to  an  officer 
his  client's  directions  for  seizing  goods  on  an  execution.'' 

Dealings  between  attorney  and  client. — The  highest  de- 
gree of  good  faith  is  required  from  an  attorney,  who,  while 
the  relation,  and  the  confidence  incident  to  it,  exists,  enters 
into  bargains  and  dealings  with  his  client.*  The  confidential 
nature  of  the  relation  enables  the  attorney  to  exercise  a  strono- 
influence  over  the  actions  of  his  client;  puts  it  in  his  power  to 
avail  of  his  necessities,  good  nature,  liberalit}^  and  credulity; 
and  hence  the  law  not  only  watches  over  all  the  transactions 

^  JosUn  V.    Cowes,  56  N.  Y.  626;  ^  Hunt  v.  Printup,  28  Ga.  297;  see 

1  Wait's  Ac.  and  Def.,  448.  Wigg  v.  Simonton,  12  Rich  (S.  C.) 

^  Smith  V.  Bowditch,!  Pick.  138;  583. 

Coit  V.   Sheldon,  1  Tyler  (Vt.)  304;  ^  Se.atoiiv.  Cordray,  Wright  (Ohio) 

Field  V.  Gibbs,  Pet.  (C.  Ct.)  155.  102. 

^Newberry  V.   Lee,  3  Hill  (N.  Y.)  ''Ford  v.  Williains,  13  N.  Y.  577. 

523;  Armstrong  v.    Dubois,  1  Abb.  *  Mechem  on  Agency,  Sees.   877- 

(N.  Y.)  8;  Armstrong  v."  Dubois,  4  879;  Weeks  on  Att.,  Sec.  268;  Mor- 

Keyes  (N.  Y.)   291;  Foster  v.  Wiley,  rison  v.  Smith,  130  111.  304;  Eolfe  v. 

27   Mich.   244;  Foster  v.    Wiley,  15  Rich,  149  III.  436;  Ross  v.  Payson, 

Am.  Rep.  185.  160  111.  349. 

*  Bitmap   V.   Marsh,    13  111.    535; 
Hardy  v.  Keder,  56  lU.  152. 


772  ATTOKNEYS    AND    COUNSELORS    AT   LAW. 

of  parties  in  this  predicament,  but  often  interposes  to  declare 
void,  transactions  which,  between  other  parties,  would  be  held 
unobjectionable.  So  strict  is  the  rule  on  this  subject,  that 
dealings  between  an  attorney  and  his  client  are  held,  as  against 
the  attorney,  to  be  lyriina  facie  fraudulent,  and  the  burden 
rests  upon  the  attorney  to  show  fairness,  adequacy  and 
equity.' 

But  the  law  does  not  prohibit  an  attorney  from  purchasing 
Droperty  from  his  client  when  the  transaction  is  fair  and 
honest,  and  in  no  manner  tainted  with  fraud,  undue  influence 
or  corruption.^ 

Assigned  to  defend  prisoners. — Paragraph  482  of  the  crim- 
inal code  provides  that  "  Ever}'-  person  charged  with  crime 
shall  be  allowed  counsel,  and  u'hen  he  shall  state  upon  oath 
that  he  is  unable  to  procure  counsel,  the  court  shall  assign 
him  competent  counsel,  who  shall  conduct  his  defense.  In  all 
cases  counsel  shall  have  access  to  persons  confined,  and  shall 
have  the  right  to  see  and  consult  such  persons  in  private."^ 

Courts,  at  common  law,  had  the  power,  and  it  was  their 
duty,  to  assign  counsel  to  defend  persons  charged  with  crime, 
who  were  unable  to  employ  counsel,  and  such  has  always  been 
the  practice  in  this  state,  and  such  power  in  the  courts  has 
never  been  questioned.* 

The  law  confers  on  licensed  attorneys  rights  and  privileges, 
and  with  them  imposes  duties  and  obligations,  which  must  be 
reciprocally  enjoyed  and  performed.  Counsel,  when  so  as- 
signed, but  performs  an  official  duty,  for  which  no  compensa- 
tion is  provided.^ 

>  Weeks  on  Att.,  Sec.  268;  Aticood  (Tenn.)  30;    Phillips  v.  Overton,   4 

V.  Mansfield,  59  111.  496;    Bank  v.  Hayw.  (Tenn.)  291;  Mason  y.  Ring, 

Keeler,  103  111.  425;  Elmore  v.  John-  3  Abb.  C.  A.  (N.  Y.)  210;   Roby  v. 

son,  143  111.  513;   Ross  v.  Payson,  Colehour,  135  111.  300;  Rolfe  v.  Rich, 

160  111.  349,  149  111.  436;  Sutherland  v.  Reeve,  41 

2  Bank  v.  Keeler,  109  111.  385;  At-  111.  App.  295;  Herr  v.  Payson,  157 

wood  V.  Mansfield,  59  111.  496;  Hess  lU.  244. 

V.  Voss,  52  111.  472;  Bibb  v.  Smith,  ^  1  Starr  &  Curtis,  861;  Eev.  Stat. 

1  Dana  (Ky.)  583;  Mills  v.  Mills,  26  (1895),  578;  Eev.  Stat.  (1893),  536. 

Conn.  213;  Starr  v.  Vanderheyden,  *  Johnson  v.   Wliiteside  Co.,    110 

9  Johns.  253;  Downing  v.  Major,  2  111.  22;  Vise  v.  County,  19  111.  78. 

Dana  (Ky.)  228;  Payne  v.  Avery,  21  'Johnson  v.    Wliiteside   Co.,  110 

Mich.  524;   Rose  v.  Mynatt,  7  Yerg.  111.  25;  Vise  v.   County,   19  IlL  78; 


ATTORNEYS    i-ND    COUNSELORS    AT    LAW.  773 

EIGHTS  AND  PRIVILEGES. 

Privileged  comniiinicatious. — Communications  made  by  a 
client  to  bis  attorney,  witb  a  view  to  obtaining  professional  ad- 
vice or  assistance,  are  privileged;  and  courts  will  not  require 
or  permit  tbem  to  be  divulged  by  tbe  attorney,  without  the 
consent  of  his  client,  whose  privilege  it  is.'  Xo  one  can  be 
compelled  to  disclose  to  the  court  any  communication  between 
himself  and  his  legal  adviser,  which  his  legal  adviser  could  not 
disclose  without  his  permission.'*  But  if  he  becomes  a  witness 
he  becomes  liable  to  full  cross-examination.^ 

A  statement  made  to  an  attorney  is  not  privileged  unless 
made  with  the  object  of  obtaining  professional  advice.*  An 
attorney  who  is  merely  employed  to  draw  a  deed  or  morto;age, 
without  giving  any  legal  advice  in  regard  thereto,  can  not  de- 
cline to  testify  to  statements  made  by  his  employer,  on  the 
ground  that  they  are  privileged  communications.^ 

An  attorney  who  has  in  his  possession  receipts  which  his 
client  could  be  compelled  to  produce  or  disclose,  can  also  be 
compelled  to  produce  them,  or  testify  as  to  their  contents.^  An 
attorney's  clerk  is  also  privileged  as  to  any  communications 
between  the  attorney  and  his  client,  to  the  same  extent  that 
the  attorney  may  be. 

A  communication  made  by  a  client  to  a  person  whom  he 
supposed  to  be  an  attorney,  and  whom  he  employed  as  such, 

see  County  v.  Waller,  90  Penn.  St.  Greenl.    on  Ev.,  240:  Hemimcay  v. 

99;  Eowe  v,  Yaab  Co.,  17  Cal.   61;  Smith,  2SYt.'1Q\ ;  Beliler  \.  Rehyer, 

People  V.  Supervisors,  28  How.  (N.  43  Ind.  112;  State  v.  White,  19  Kan- 

Y.)  22;  Wright  y.   State,   3    Heisk.  sas 445;  5tfe?2 A;  v.  PeopZe,  20  111.  App. 

(Tenn.)  256;  Elam  v.  Johnson,   48  111. 
Geo.  348.  ^Com.  v.  Mullen,  97  Mass.  545; 

'  1  Greenl.  Ev.,  Sec.  237;  Daniel  v.  Inhab.  v.  Henshaw,  101  Mass.  200. 
Daniel,  39  Penn.  St.  191;  Fossler  v.  *  Marsh  v.  Hoice,  36  Barb.  (N.  Y.) 

Schriber,    38    111.    172;    Hatton    v.  649;  24  Ark.  346;  26  Tex.  273. 
Robinson,     14     Pick.    420;     People         '=  De  Wolf  v.   Strader,  2Q   111.225; 

V.    Barker,   56    111.    299;  Thorp   v.  Woodruff  v.  Hurson,  32  Barb.  575. 
Goewey,  85  111.  611;  Scjtt  v.  Harris,  ^ Andreivs  v.   R.  R.  Co.,   14  Ind. 

118  111.  447;  see  Lynn  v.  Lyerle,  113  169;  Borum  v.  Fonts,  15  Ind.  50;  Ex 

111.  128;  Tyler  V.  Tyler,  126  111.  525;  parte  Maulsby,13Ud.  G25;  Peoplev. 

Sivaim  v.    Humphreys,  42   111.  App.  Sheriff,   29   Barb.  622;  see   Gray  v. 

370;  City  v.  Falver,  27  111.  App.  604.  Fox,  43  Mo.  570. 

''Wharton    on    Ev.,     Sec.      583; 


774  ATTORNEYS    AND    COUNSELORS    AT   LAW. 

but  who,  although  acting  as  an  attorne}'',  was  not  in  fact  ad- 
mitted, are  not  privileged.'  While  an  attorney  may  not  dis- 
close the  confidential  communications  of  his  client,  he  may 
testify  to  facts  he  learns  or  knows  from  other  sources  than 
from  the  relation  of  attorney  and  client.'' 

j^ees. — An  attorney  can  not  recover  for  services  rendered 
as  such  unless  he  can  show  an  employment  or  retainer;^  and 
it  requires  a  retainer,  or  fee  paid,  to  constitute  the  relation  of 
attorney  and  client.*  Agreements  for  contingent  fees  to  at- 
torneys are  not  against  law  or  public  policy.* 

If  an  attorney  is  employed,  for  a  stipulated  fee,  to  prosecute 
a  suit  to  a  final  judgment,  and  his  client,  during  the  progress 
of  the  cause,  dismisses  him  without  any  fault  on  his  part,  he 
is  entitled  to  payment  for  the  services  already  rendered,  if  not 
to  the  stipulated  fee.' 

An  attorney  can  not  recover  for  services  which,  through  his 
own  neglect,  proved  to  be  of  no  value  to  his  client.''  A  client 
can  not,  at  his  own  option,  by  the  employment  of  additional 
counsel,  reduce  the  amount  of  the  compensation  or  fee  Avhich 
he  had  stipulated  to  pay  to  the  original  attorney.' 

I^ieii. — At  common  law,  an  attorney  has  a  lien  for  his  fees 
upon  any  papers  of  his  client  which  may  come  into  his  hands,* 
and  this  is  not  confined  to  any  particular  case,  but  extends  to 
his  whole  account.'"  In  Illinois  an  attorney  has  a  general  lien 
upon  all  papers,  documents,  etc.,  of  his  client  placed  in  his 
hands  in  his  professional  character  or  in  the  course  of  his  pro- 
fessional business." 

^Sample  v.    Frost,  10  Iowa   266;  Wood  v.  Anders,  5  Bush  (Ky.)  601; 

Fos^erv.flaZi,  12 Pick.  89;  AicLaug/i-  Quint  v.  Mining   Co.,  4  Nev.   304; 

Zmv.  Gilmore,  1  Bradvv.  563;  Inhab.  Myers  v.  Crockett,  14  Tex.  257. 

V.  Henshaiv,  101  Mass.  200.  ''Nixon  v.  Phel2)s,  29  Vt.  198. 

2  Chillicothe    v.    Jameson,  48  III.  ^  Randall  v.  Archer,  5  Florida  438. 

281;  Staley  v.  Dodge,  50  III.  43.  ^Hughes    v.  Mayre,  3    T.  R.  275; 

3i2.  R.  Co.  V.  Lamed,  26  111.  218.  Mitchell  v.    Oldfield,    4  T.    R.    123; 

*DeWolf  V.  Strader,  26  111.    225;  Tidd's  Pr.  337. 

see  Johnston  y.  Brown,  51  111.  App.  ^^  Stephens  \.  Blalock,   1   M.  «fe  S. 

549.  535;  Ward  v.  Craig,   87  N.  Y.  551; 

5  Newkirh  v.  Cone,  18  111.  449;  see  St.  John  v.  Diefendorf, 12  Wend.  261; 

Fraatzv.  Gairison,  83111.  60;  Badger  Smith  v.  Young,  62  111.  210;   Walker 

V.  Gallaher,   113  111.  662;  People  v.  v.  Sargant,  14  Vt.  247. 

iHitrp/iy,  119  111.  159.  ^^  Sanders  v.  Seelye,   128  111.    631; 

^  Jones  V.  Morgan,  39  Geo.  310;  Dinswoor  v.  BressZer,  56  111.  App.  207. 


ATTORNEYS    AND    COUNSELORS   AT    LAW.  i7o 

It  seems,  however,  that  he  has  no  charging  or  special  lien 
upon  the  subject-matter  of  the  suit,'  but  he  may  by  agree- 
ment with  his  client  acquire  an  equitable  lien  as  against  him 
in  the  judgment  recovered,  or  the  subject-matter  of  the  litiga- 
tion and  proceeds  thereof,  for  his  fees  and  disbursements  in  the 
case.^ 

Change  of  attorney. — An  attorney  can  not  withdraw  his 
appearance  from  a  cause,  nor  can  a  party  litigant  substitute 
another  attorney  without  notice  to  the  parties  in  interest,  and 
the  judgment  of  the  court  is  required  upon  the  subject  in 
order  that  the  rights  of  all  parties  may  not  be  unduly  preju- 
diced.' 

A  party  having  appeared  by  one  attorney  can  not  make  an 
application  to  the  court  by  another,  without  having  obtained 
an  order  for  changing  his  attorneys.  And  till  an  order  is 
obtained,  the  opposite  party  and  his  attorney  are  justified  in 
considering  the  former  attorney  as  being  still  employed,  and 
are  not  bound  to  take  notice  of  any  proceedings  in  the  name 
of  another  attorney.^ 

A  plea  filed  by  a  new  attorney  without  any  order  of  the 
court  for  change  of  attorneys  is  irregular,  and  the  complainant 
is  not  bound  to  accept  such  plea.' 


'  Sanders  v.  Seelye,  128  111.  631 
Forsythe  v.  Beveridge,  53  111.  268 
Humphrey  v.  Browning,  46  111.  476 
LaFrambois   v.    Grow,   56   111.   197 


^  Stock  Exchange  v.  McClaugkry, 
50  III.  App.  358. 

*  Stock  Exchange  v.  McClaughry, 
50  111.  App.  358;  1  Tidd'sPr.  93;  Gin- 


Henchey  v.  City,  41  111.  136;  Nichols  ders  v.  Moore,  1  B.  &  C.  654;  Cohen 

V.    Pool,   89  III.    491;    Bromwell  v.  v.  Smith,  33  111.  App.  344;  U.  S.  v. 

Turner,   37  111.  App.  561;  Dinsmoor  Curry,  6  How.  (U.  S.)  106. 

V.  Bressler,  56  111.  App.  207.  *  Stock  Exchange  v.  McClaughry, 

•2  Smith  V.  Young,  62  111.  210;  see  50  111.  App.  358. 
Patton  V.  Wilson,  34  Pa.  St.  299. 


CHAPTER  XXXI. 

CHANGE  OF  VENUE  IN  CIVIL  CAUSES. 

Causes. — The  statute  of  Illinois  provides  that  "a  change 
of  venue  in  any  civil  suit  or  proceeding  in  law  or  equity,  in- 
cluding proceedings  for  the  exercise  of  the  right  of  eminent 
domain,  may  be  had  in  any  of  the  following  cases : 

First.  Where  the  judge  is  a  party  or  interested  in  the  suit, 
or  his  testimony  is  material  to  either  of  the  parties  to  the  suit, 
or  he  is  related  to,  or  shall  have  been  counsel  for  either  party 
in  regard  to  the  matter  in  controversy.  In  any  such  case  a 
change  may  be  awarded  by  the  court  in  term  time,  with  or 
without  the  application  of  either  party. 

Second.  Where  either  party  shall  fear  that  he  will  not  re- 
ceive a  fair  trial  in  the  court  in  which  the  suit  or  proceeding 
is  pending,  because  the  inhabitants  of  the  county  are  or  the 
judge  is  prejudiced  against  him,  or  the  adverse  party  has  an 
undue  influence  over  the  minds  of  the  inhabitants.  In  any 
such  case  the  venue  shall  not  be  changed  except  upon  applica- 
tion, as  hereinafter  provided,  or  by  consent  of  the  parties."  ' 

A  change  of  venue  in  proceedings  by  information  in  the 
nature  of  a  quo  warranto^  and  for  mandainus  against  a  county,' 
and  in  any  suit  where  a  county  is  a  party,  may  be  taken.* 

When  the  reasons  for  a  change  of  venue  cease  to  exist  the 
necessity  and  the  right  to  a  change  also  cease.' 

"  Neither  party  shall  have  more  than  one  change  of  venue."  ' 

1  Rev.  Stat.  (1893)  1468;  2  Starr  &  ^People  v.  Shaw,  13  111.  582;  Ens- 

Curtis  2448-9;  Rev.  Stat.  (1895)  1570;  minger  v.  People,  47  111.  384. 

see  Pierson  v.   Finney,   37  111.   29;  ^  il/cBane  v.  PeojiZe,  50  111.  503. 

Bruen  v.  Bruen.  43  III.  408;  Coal  Co.  "  County  v.  Hall,  53  111.  440. 

V.  Merrick,  79  111.  112;   Ins.  Co.  v.  ''Myers  v.  Walker,  31  111.  353. 

Tolman,  80  111.  106;  Matter  of  Will  «  2  Starr  &  Curtis  2452;  Rev.  Stat, 

u/  W.  F.  Storey.    20    Bradw.    183;  (1893)  1469;  Rev.  Stat.  (1895)  1571. 
Cassem  v.  Olson,  45  111.  App.  38. 

(776) 


CHANGE    OF    VENUE   IN   CIVIL   CAUSES.  777 

Notice. — A  party  desiring  a  change  of  venue  must  give 
notice  of  his  intention  at  the  earliest  period.  If  the  cause  of 
the  change  is  known  in  vacation,  notice  should  be  given,  and 
the  application  made  to  the  judge  at  chambers.  The  require- 
ment of  the  statute  as  to  notice  is  positive.' 

The  notice  to  be  given  to  the  opposite  party,  or  his  attor- 
ney, may  be  in  the  following  form  : 

No.  330.    Form  of  Notice. 

In  the Court. 

CD.) 
ats.    y  Assumpsit. 

A.  B.   )  To  the  above  named  A.  B. ,  plaintiff. 

Take  notice  that  on,  etc.,  or  as  soon  thereafter  as  counsel  can  be  heard, 
the  defendant  will  make  an  application  to  the  (judge  of  the)  said  court  (at, 
etc.),  for  a  change  of  venue  in  this  cause,  on  account  of  {here  state  the 
ground  of  the  application:)  and  jou  can  appear  and  resist  such  application 
if  you  see  fit  so  to  do. 

{Date.) 

Att'ij  for  Deft. 

The  petition. — The  statute  of  1874  requires  that 
"Every  application  for  a  change  of  venue  shall  be  by  peti- 
tion, setting  forth  the  cause  of  the  application  and  praying 
the  change  of  venue;  which  petition  shall  be  verified  by  the 
affidavit  of  the  applicant." 

"  If  the  cause  for  the  change  is  the  prejudice  of  the  inhabit- 
ants of  the  county,  or  the  undue  influence  of  the  adverse 
party  over  their  minds,  the  petition  shall  set  forth  the  facts 
upon  which  the  petitioner  founds  his  belief,  and  must  be  sup- 
ported by  the  affidavits  of  at  least  two  other  reputable  per- 
sons, resident  of  the  county.  The  adverse  party  may  contro- 
vert the  petition  by  counter  affidavits,  and  the  judge  may 
grant  or  deny  the  petition,  as  shall  appear  to  be  accordino-  to 
the  right  of  the  case."  ^ 

'  Rev.  Stat.  (1895),  1571:   see  Bry-  Co.  v.  Eddy,  72  111.  138;    McCann 

son  V.  Craivford,  68  III.  362;  Graves  v.    People,    88    111.    103;    3Iiller    v. 

V.   Shoefelt,   60  111.    462;    M >ore  v.  Pence,  132  111.  149. 

Ellfnvorth,   51    111.    308;    Marble   v.  ^  2  Starr  &  Curtis,  2450;  Rev.  Stat. 

Bonhotel,d5m.  240;  Kelly  V.  Doims,  (1893)  1463;   Rev.  Stat.  (18)3)  1571; 

29  111.  74;  Utleyy.  Burns,  70  111.  162;  see  Hall  v.  Barnes.  82  111.  228;  Git- 

By.  Co.  V.  Maxfield,  72  111.  95;  Ry.  chell  v.  People,  45  111.  App.  116. 


778  CHANGE    OF   VENUE   IN   CIVIL    CAUSES. 

No.  SSI.     Form  of  petition  on  account  of  the  prejudice  of  a  judge. 

(Title  of  court,  etc.,  as  in  No.  3S0.) 

The  petitioner,  C.  D.,  defendant  in  this  cause,  respectfully  shows  to  the 
(judge  of  the)  said  court  that  he,  the  petitioner,  fears  that  he  will  not  receive 
a  fair  trial  in  the  said  court,  on  account  that  the  judge  thereof  is  prejudiced 
against  him,  the  petitioner,  so  that  he  can  not  expect  a  fair  trial  in  the  said 
court,  and  that  a  knowledge  of  such  prejudice  did  not  come  to  the  petitioner 
until,  etc.  He  therefore  prays  a  change  of  venue  in  this  cause,  pursuant  to 
the  statute  in  such  case  made  and  provided.  C.  D. 

{Title  of  court,  etc.,  as  in  No.  380,  ante.) 

C.  D. ,  defendant  in  this  cause,  makes  oath  and  says,  that  the  foregoing 
petition  is  true  in  substance  and  in  fact.  C.  D. 

Subscribed  and  sworn  to,  etc. 

No.  382.    Form  of  petition  on  account  of  prejudice  of  inhabitants,  etc. 

{Title  of  court,  etc.,  as  in  No.  380.) 

The  petitioner,  C.  D. ,  defendant  in  this  cause,  respectfully  shows  to  the 
(judge  of  the)  said  court  that  he,  the  petitioner,  fears  that  he  will  not  receive 
a  fair  trial  in  the  said  court,  on  account  that  the  inhabitants  of  the  said 
county  of are  prejudiced  against  the  petitioner  {or  that  A.  B.,  plaint- 
iff in  this  cause,  has  an  undue  influence  over  the  minds  of  the  inhabitants 

of  said  county  of )  so  that  the  petitioner  can  not  expect  a  fair  trial  in 

the  said  court;  and  that  he,  the  petitioner,  did  not  ascertain  the  existence 

of  such  prejudice  {or  influence)  until  within  the  last days;  and  that  he, 

the  petitioner,  founds  his  belief  upon  the  following  facts,  etc.  {Here  set 
forth  the  facts  upon  which  the  petitioner  founds  his  belief.)  The  petitioner 
therefore  prays  a  change  of  venue  in  this  cause,  pursuant  to  the  statute  in 
such  cases  made  and  provided.  C.  D. 

{Add  affidavit  as  in  last  precedent,  also  affidavit  of  two  residents.) 

When  application  may  be  made. — "  The  application  may- 
be made  to  the  court  in  which  the  cause  is  pending  in 
term  time,  or  to  the  judge  thereof  in  vacation;  reasonable 
notice  thereof  having  been  given  to  the  adverse  party  or  his 
attorney." 

"  No  application  for  a  change  of  venue  after  the  first  term 
shall  be  allowed,  unless  the  party  applying  shall  have  given 
to  the  opposite  party  ten  days'  previous  notice  of  his  inten- 
tion to  make  such  application,  except  where  the  causes  have 
arisen  or  come  to  the  knowledge  of  the  applicant  within  less 
than  ten  days  before  the  making  of  the  application." 

"  No  change  of  venue  shall  be  granted  after  the  first  term 
of  the  court  at  which  the  party  applying  might  have  been 
heard,  unless   he  shall  show  that  the  causes  for  which  the 


CHANGE    OF    VENUE    IN    CIVIL   CAUSES.  779 

change  is  asked  has  arisen  or  come  to  his  knowledge  since  the 
term  at  which  the  application  might  have  been  made."  ' 

By  whom  application  must  be  made. — An  application  for 
a  change  of  venue  must  be  made  by  a  party  to  the  record.* 
But  when  a  corporation  applies,  any  recognized  officer  thereof 
may  make  the  requisite  affidavit/ 

By  part  of  plaintiffs  or  defendants. — "  When  there  are 
two  or  more  plaintiffs  or  defendants,  a  change  of  venue  shall 
not  be  granted  unless  the  application  is  made  by  or  with  the 
consent  of  all  the  parties,  plaintiff  or  defendant,  as  the  case 
may  be;  providecl^  that  in  proceedings  for  the  condemnation 
of  property,  when  the  application  is  by  or  against  all  the 
owners  of  an}'-  parcel  of  property  to  be  condemned,  a  change 
of  venue  may  be  made  of  so  much  of  the  case  as  affects  them, 
if  it"  can  be  done  without  prejudice  to  the  other  defendants  or 
plaintiffs  in  such  proceeding."  '  Where  a  part  of  the  defend- 
ants have  let  judgment  go  by  default  they  need  not  join  in 
the  application."  When  a  part  of  the  defendants  who  were 
served  with  process  obtained  a  change  of  venue,  other  defend- 
ants afterwards  served  were  held  not  bound  by  such  order.® 

Order  in  vacation. — "When  a  change  of  venue  is  granted 
in  vacation,  the  judge  granting  it  shall  immediately  transmit 
the  petition  and  affidavits,  and  his  order  directing  the  change 
of  venue,  to  the  clerk  of  the  court  in  w^hich  the  cause  is  pend- 
ing, who  shall  file  the  same  in  his  office,  and  make  an  entry  of 
such  order  on  the  records  of  the  court." 

Terms  and  conditions. — "  The  order  for  a  change  of  venue 
may  be  made  subject  to  such  equitable  terms  and  conditions 
as  safety  to  the  rights  of  the  parties  may  seem  to  require,  and 
the  judge  in  his  discretion  may  prescribe." 

'2   Starr  &  Curtis,  2451-2;    Rev.  »  Croiuellv.  Maughs,  2  Gilm.  419. 

Stat.  (1895),  1571;  Rev.  Stat.    (1893),  ^  Ins.  Co.  v.  Mehlman,  iS  III.  313. 

1469;  see  i^eeresv.iJeeves,  59111. 203;  <  2  Starr     &    Curtis,   2452;    Rev. 

Ry.  Co.  v.  Eddy,  72111.  139;  see  Bry-  Stat.  (1893),  1469;  Rev.    Stat.  (1895), 

son  V.  Crmcford,  G8  III.  SQ2;  Ry.  Co.  1571;    see  Schmidt  v.    Mitchell,   84 

v.  Mitchell,  74  111.    394;  Hudson  v.  111.  195. 

Hanson,  75    111.  198;    Richards  v.  *  iZ^i«  v.  4«en,  13  III.  592;  Wight 

Green,  78111.525;  Harding  v.  Toivn,  v.  Meredith,  4  Scam.  360;  see  Hili 

83  111.  501;   White  v.   Murtland,  71  v.  Gruell,  42  111.  App.  411. 

111.    250;  Gager  v.  Edwards,  26  111.  «  Albin  v.  Talbott,  46  111.  424. 
App.  487. 


780  CHANGE    OF    VENUE    IN    CIVIL   CAUSES. 

Costs  of  the  change. — "  The  expenses  attending  a  change 
of  venue  shall  be  taxed  by  the  clerk  of  the  court  from  which 
the  case  is  certified,  according  to  the  rate  established  by  law 
for  like  services,  and  shall  be  paid  by  the  petitioner,  and  not 
taken  as  a  part  of  the  costs  in  the  suit." 

When  to  he  paid. — "The  order  shall  be  void  unless  the 
party  obtaining  a  change  of  venue  shall,  within  fifteen  days, 
or  such  shorter  time  as  the  court  or  judge  may  prescribe,  pay 
to  the  clerk  the  expenses  attending  the  change." 

"  Where  the  venue  is  changed  without  the  application  of 
either  party,  the  costs  of  such  change  shall  abide  the  event  of 
the  suit."  ' 

Transcript  papers,  etc. — "  In  all  cases  of  changes  of  venue 
the  clerk  of  the  court  from  which  the  change  is  granted  shall 
immediately  make  out  a  full  transcript  of  the  record  and  pro- 
ceedings in  the  case,*and  of  the  petition,  affidavits  and  order 
for  the  change  of  venue,  and  transmit  the  same,  together  with 
all  the  papers  filed  in  the  case  to  the  proper  court;  provided^ 
that  when  the  venue  is  changed,  on  behalf  of  a  part  of  the 
defendants  to  a  condemnation  proceeding,  it  shall  not  be  nec- 
essary to  transmit  the  original  papers  in  the  case,  but  it  shall 
be  sufficient  to  transmit  certified  copies  of  so  much  thereof  as 
pertains  to  the  case  so  changed.  Such  transcript  and  papers 
or  copies  may  be  transmitted  by  mail,  or  in  such  other  way 
as  the  court  or  judge  may  direct.^ 

All  objections  to  the  transcript  should  be  made  at  the 
earliest  period,^  and  all  exceptions  will  be  waived  if  parties  pro- 
ceed to  trial.* 

To  what  court. — "  When  a  change  of  venue  is  granted  it  may 
be  to  some  other  court  of  record  of  competent  jurisdiction  in 
the  same  county,  or  in  some  other  convenient  county,  to  which 
there  is  no  valid  objection;  provided^  that  when  the  action 
is  pending  in  either  the   circuit    or  superior  court  of  Cook 

'  2  Starr  &  Curtis,  2453;  Rev.  Stat.  ^  Granger  v.  Warrington,  3  Gilm. 

(1893)  1469;  Rev.  Stat.  (1895)  1571-2;  299;  Watts  v.  Stoltz,   28  III.    App. 

see  English  v.  Faidds,  58  111.  266.  541. 

2/6.;  see  Yates  v.   People,   38  111.  *Hittv.  Allen,  13  111.  592;   Tucker 

527;  see  Wright  v.  Kirk,  4  Scam.  339;  v.  Peoyle,  122  111.  583. 
English  v.  Faulds,  58  111.  266;  Hea- 
cock  V.  Hosmer,  109  111.  245. 


CHANGE    OF    VENUE    IN   CIVIL    CAUSES.  7S1 

count}^,  and  the  only  causes  for  a  change  of  venue  apply  to 
one  or  more  but  not  all  of  the  judges  of  such  court,  the  case 
may  be  tried  before  some  one  of  the  judges  of  such  court  to 
whom  the  causes  do  not  apply."  * 

The  question  as  to  what  is  a  "  convenient  county,"  within 
the  meaning  of  the  statute,  is  to  be  determined  by  the  pre- 
siding judge  in  the  exercise  of  his  discretion.^ 

The  case  may  be  sent  from  the  circuit  to  the  county  court.^ 

Docketing  cause. — "  The  clerk  of  the  court  to  which  the 
change  of  venue  is  granted  shall  file  the  transcript  and  papers 
transmitted  to  him,  and  docket  the  cause,  and  such  cause  shall 
be  proceeded  in  and  determined  in  all  things,  as  well  before  as 
after  judgment,  as  if  it  had  originated  in  such  court."  * 

Irregularities  waived. — "All  questions  concerning  the 
regularity  of  the  proceedings  in  a  change  of  venue,  and  the 
right  of  the  court  to  which  the  change  is  made  to  try  the  cause 
and  execute  the  judgment,  shall  be  considered  as  waived  after 
trial  and  verdict."  ^ 

Where  a  change  of  venue  is  improperly  granted,  the  proper 
practice  for  the  party  complaining  is  to  move  to  remand  the 
cause  to  the  county  from  which  it  was  sent,  and  if  his  motion 
is  overruled  take  an  exception  and  embody  the  motion  and 
ruling  of  the  court  in  a  bill  of  exceptions.* 

Criminal  cases. — For  proceedings  for  a  change  of  venue  in 
criminal  cases,  see  Rev.  Stat.  1895,  p.  1572,  and  2  Starr  & 
Curtis'  An.  Stat.  21:5'1-S;  also  cases  cited  below.' 

'3  Starr  &  Curtis,   2454-5;   Rev.  ^Johnson  v.    Von Kettler,   66  111. 

Stat  (1893),  1469;  Rev.  Stat.   (1895),  63. 

1571;  see I-OMJre^/v.  Cosier,  91111. 182;  '' Perteet   v.  People,    65    111.    230; 

R.  R.  Co.  V.  Perkins,  125  111.  127.  Rafferty  v.  People,  66  111.  118;  Bar- 

^Stringam  v,  Parker,  159  111.  304.  roivs  v.  Peojile,  11  111.  121;  Little  v. 

■^McOrath  v.  Miller,  61  111.   App.  Allington,  93  111.  253;  Gray  v.  Peo- 

497;  see  Mix  v.  People,  122  111.  641.  pie,  26  111.  344;  Smith  v.  People,  36 

4  Rev.  Stat.  (1895),  1572;  Ins.  Co.  111.  290;  McBane  v.  People,  50  111. 

V.  Nelson,  75  111.  548.  503;  People  v.   McRoherts,   100  111. 

5Jb.;  Gardner  V.  PeojaZe,  3  Scam.  458;   Price  v.  People,   131   111,   223; 

8d;  Brennan  v.  People,  15  111.  511;  Langford  v.  People,   134    111.   444; 

Johnson  v.   Von  Kettler,  66  111.  63;  Hicham  y.  PeopZe,  137  111.  75;  Cant- 

Perteet  v.  People,  70  111.  171;  Flagg  uell  v.  People,  138  111.  602;  Jamison 

V.    Roberts,   67    111.    485;  Noyes  v.  v.  PeojJle,  145  111.  357. 
Zerns,  94  111.521. 


782  CHANGE    OF    VENUE   IN    CIVIL    CAUSES. 

To  what  judse.— When  a  change  of  venue  is  granted  on 
account  of  the  alleged  prejudice  of  the  presiding  judge,  it  is 
proper  practice  to  change  the  venue  to  another  judge  of  the 
same  circuit.* 

'  R.  R.  Co.  V.  Perkins,  26  111.  App.      Myers  v.   Walker,  31  111.  353;   Ins. 
67;  see  Curran  v.  Beach,  20  111.  259;      Co.  v.  MeMman,  48  111.  313. 


CHAPTER  XXXII. 

SUBMISSION  TO  JUDGE. 

The  act  of  1887,  entitled  "  An  act  to  enable  parties  to  avoid 
delay  in  the  administration  of  justice,"  provides 

"  That  any  two  or  more  persons  or  corporations  may  ap- 
pear in  person  or  by  attorney  in  any  circuit  court  [or  in  the 
superior  coui't  of  Coolc  county),  and  submit  to  any  judge  thereof, 
orally,  and  without  formal  pleadings,  any  matter  in  con- 
troversy, having  first  entered  into  a  written  agreement  [to  he 
entered  of  record),  and  substantially  in  the  following  form, 
to  wit : ' 

No.  383.    Agreevient  to  submit  controversies  to  a  judge. 

"  In  the court  of county. 

First.  "We  {here  insert  names)  do  hereby  mutually  agree  to  submit  to 
Judge  Qiere  insert  name),  of  said  court,  certain  matters  in  controvei-sy  be- 
tween us  for  his  determination,  without  a  jury,  he  to  hear  the  same  forth- 
with and  to  enter  the  judgment  or  decree  of  the  court  therein  within  (here 
insert  number  of  days  or  ''forthwith  ")  days  after  such  hearing  is  concluded. 

Second.  That  said  judgment  or  decree  shall  contain  a  statement  as  to 
what  matters  in  controversy  were  so  submitted,  and  such  statement  thereof 
shall  be  conclusive. 

Third.  That  no  record,  except  of  this  agreement  and  of  such  judgment 
or  decree,  shall  be  made  as  to  the  matters  in  controversy  so  submitted,  or 
as  to  the  proceedings  had  on  the  hearing  thereof. 

Fourth.  That  such  judgment  or  decree  may  be  enforced  in  like  manner 
as  other  judgments  and  decrees  of  such  court. 

Fifth.  That  we  each  to  the  other  hereby  waive  all  right  of  appeal  from 
such  judgment  or  decree,  and  release  all  errors  that  may  intervene  in  tlie 
hearing  of  the  matter  so  submitted,  and  in  the  entering  up  of  the  judgment 
or  decree  therein,  and  agree  that  this  release  of  errors  may  be  pleaded  in 
bar  of  any  writ  of  error  that  may  be  sued  out  as  to  such  judgment  or 
decree. 

Witness  our  hands  and  seals,  this day  of ,  A.  D.  18 — , 

[seal.] 

[SEAL.]" 

'  3  Starr  &  Curtis'  An.  Stat.  1000;  Rev.  Stat.  (1893)  1085;  Rev.  Stat. 
(1895)  1169. 

(783) 


784  SUBMISSION   TO    JUDGE. 

"  Such  agreement  shall  be  signed  by  the  parties  in  person  or 
by  duly  authorized  attorney  in  fact,  and  when  so  executed 
shall  be  of  binding  force  upon  the  parties  thereto  in  all  the 
courts  of  this  state. 

"  It  shall  be  the  duty  of  such  judge  to  proceed  and  in  a 
summary  manner  to  hear  and  determine  the  matters  so  sub- 
mitted, and  he  shall  enter  a  judgment  or  decree  therein,  within 
the  time  fixed  in  said  agreement,  which  said  judgment  or 
decree  shall  be  final  and  conclusive,  and  may  be  enforced  in 
like  manner  as  other  judgments  or  decrees  of  such  court,  but 
no  appeal  shall  be  allowed  therefrom," 

The  provisions  of  section  1  of  the  statute  requiring  the 
agreement  "to  be  entered  of  record,"  are  directory  only,  and 
not  jurisdictional.* 

All  matters  which,  under  our  system,  are  cognizable  either 
at  law  or  in  equity,  are  susceptible  of  submission  to  the  judge 
of  the  court  for  determination  under  this  statute.' 

'  Farwell  v.  Shirges,  58  111.  App.  *  Ibid. 

462. 


CHAPTER  XXXIII. 

NEW  TEIALS. 

The  practice  of  granting  new  trials  is  said  to  have  begun 
in  England  in  1652.'  At  first  they  could  be  obtained  only 
with  the  greatest  difficulty,  but  in  modern  practice  they  are 
liberally  granted  in  furtherance  of  justice.  Where,  however, 
the  proceedings  in  a  cause  have  been  regularly  and  fairly  con- 
ducted, courts  will  very  reluctantly  disturb  a  verdict  and  grant 
a  new  trial.^ 

The  principal  grounds  for  setting  aside  a  verdict  and  grant- 
ing a  new  trial,  may  be  considered  under  the  following  heads : 

1.  Misl)eliavior  of  the  party  prevailing. — If  a  party  is 
guilty  of  any  improper  conduct  towards  a  witness,  such  as 
threatening  or  persuading  him,  or  influencing  him  upon  the 
stand,  as  by  making  signs  how  the  witness  shall  answer,  a  new 
ti'ial  will  be  granted; '  or  if  the  prevailing  party,  his  agent  or 
counsel,  surreptitiously  hands  to  the  jury  any  paper  not  pre- 
viously offered  in  evidence,  baing  material  to  the  point  in 
issue;  *  or  if  he  or  they  directly  approach  the  jury  on  the  sub- 
ject of  the  trial;  ^  or  where  indirect  measures  have  been  resorted 
to  for  the  purpose  of  influencing  the  jury,°  or  tricks  practiced,' 

^Woodv.  Gunston,  Styles'  Rep.  C.R.25Q;  Watson  v.  Walker,dFo8ter 

462;  Williams  v.  Pratt,  7  Eng.  C.  L.  471. 

293.  *  Blaine  v.  Chambers,  1  S.  &    R. 

2  Wickersliam  v.  People,  1  Scam.  169;  Ritchie  v.  Holbrook,  7  S.  &  R. 

128;    Hust    V.   Conn,  12    Ind.    257;  458;  Claggage  v.  Swan,  4  Binn.  150; 

Powell  V.   Grimes,  8  Ind.  252;    see  Knight  v.  Freeport,   13  Mass.  218; 

Sullivan  v.  Dollins,  13  111.  85;  Cal-  Thompson  y.  Mallett,  2  Bay  Qi;  Cot- 

houn  V.  ONeal,  53  111.  354.'  tie  v.  Cottle,  6  Greenl.  140;  Martina. 

^Amherst  v.  Hadley,  1   Pick.  38;  il/breZocA;,  32  111.  485. 

Knight  \.  Freeport,  \Z^li\ss.  21S.  ^  Spencely   v.  DeWillott,  7    East 

*  Lonsdale  v.  Brown,  4  Wash.  C.  108. 

C.  R.  148;    Whitney  v.  Wliitman,  5  '11  Mod.  141;  Walker  v.  Walker, 

Mass.  405;  People  v.  Carnal,  1  Parker  11  Geo.  203. 
50                                 (785) 


786  NEW   TRIALS. 

or  disingenuous  attempts  made  to  suppress  or  stifle  evidence, 
or  thwart  the  proceedings,  or  obtain  an  unconscientious  ad- 
vantage, or  mislead  the  court  and  jury,  a  new  trial  will  be 
awarded.' 

If  a  party  in  whose  favor  a  verdict  is  rendered,  or  his  at- 
torney, holds  a  conversation  with  any  of  the  jurors,  about  the 
case,  after  it  has  been  submitted  and  before  the  verdict  is 
delivered,  it  will  be  a  ground  for  a  new  trial.* 

2.  Mistakes  and  misconduct  of  tlie  jury,  etc. — Where 
the  jurors  determine  their  verdict  by  casting  lots,  a  new  trial 
will  be  granted;*  but  where  each  juror  named  a  sum,  and  the 
whole,  being  added  together,  was  divided  by  twelve,  and  the 
quotient  was  taken  for  the  verdict,  a  new  trial  was  refused.* 

Where  a  juror  had  formed  and  expressed  a  decided  opinion 
upon  the  merits  of  the  case,  adverse  to  the  defendant,  and 
that  fact  was  not  known  to  the  latter  or  his  counsel,  who 
exercised  proper  diligence  by  asking  the  juror,  before  he  was 
sworn,  whether  he  had  formed  and  expressed  an  opinion — it 
was  held  that  the  defendant  was  entitled  to  a  new  trial.* 

If  the  jurors  act  in  disregard  of  their  oath,'  drink  spirit- 
uous liquors  after  being  charged  with  the  cause ""  or  resort  to 
artilice  to  get  rid  of  their  confinement,'  or  commit  other  acts 
of  that  sort,  it  will  avoid  a  verdict.'     But  misconduct  on  the 

'  Grab.  New  Trials  56;  4  Chit.  Pr.  ^  Vennum   v,   Hanvood,  1  Gilm. 

59.  659;  Sellers  v.  People,  3  Scam.  412; 

2  Martin  v.  Morelock,   33  111.  485;  see  Jeffries  v.  Randall,  14  Mass.  205; 

see    Bonnet   v.  Glattfeldt,  120    111.  People  v.  Fries,  3  Dall.  515;    People 

166;  Bevelot  v.  Lestrade,  153  111.  625.  v.  Plummer,  9  Cal.  298. 

s  Voize  V.  Deleval,  1  Term  11;  St.  «  Cro.  Eliz.  778;  Martin  v.  State, 

John  V.  Abbott,  Barnes  441;    Smith  25    Geo.  494;    State  v.  Shelledy,  8 

V.  Cheetham,  3  Caines  57;  Coram,  v.  Clark  (Iowa)  477;  see  R.  R.  Co.   v. 

Roby,  12  Pick.  496;   Manix  v.  Malo-  Swearengen,  47  111.  206. 

ney,  7  Clarke  (Iowa)  81;  Schanler   v.  ''People  \.  Douglass,  4  Cow.  26; 

Porter,  7  Clarke  (Iowa)  482;    GHn-  Brant  v.  Foider,  7  Cow.  562;  Com. 

nell  V.  Phillips,  1  Mass.  530;    R.  R.  v.  Roby,  12  Pick.  496;  see  Wilsonx. 

Co.  V.  Birkett,  62  III.  332.  Abrahams,  1  Hill  (N.  Y.)  207. 

4  Qrinnell  v.  Phillips,  1  Mass.  530;  *  Oliver  v.  Trustees,  5  Cow,  283. 

Brooke  V.  White,  1    Bos.  &P. ;    see  '  Bumb.  35;    St.  John  y.  Abbott 

Reed  v.  Thompson,  88  111.  245;  Cum-  Barnes,  438;  1  Str.  462;  1  Bl.    1299; 

mins    V.    Crawford,     88     111.   312;  Comb.  357;  4  Cbit.  Pr.  48. 
Claggage  v.  Swan,  4  Binn.  150. 


NEW   TRIALS. 


7S7 


part  of  the  jurors  is  not,  in  all  cases,  a  sufficient  ground  for 
setting  aside  a  verdict;  and  although  their  misconduct  may 
subject  them  to  punishment,  yet  if  there  does  not  appear  to 
have  been  any  abuse,  the  verdict  will  not  be  disturbed.' 

If  an  officer,  having  charge  of  a  jury,  permits  any  member 
of  it  to  drink  spirituous  liquors  after  he  is  sworn,  but  before 
the  case  is  submitted,  the  officer  may  be  punished  for  it,  but 
the  verdict  will  not  be  vitiated.''  The  affidavits  of  jurors 
themselves  will  never  be  received,  to  prove  any  impropriety 
or  misconduct  on  their  part,  relating  to  the  trial  or  verdict.'' 

3.  Terdict  against  law  ami  evidence. — A  new  trial  will 
be  granted  where  the  verdict  of  the  jury  is  contrary  to  the 
law,*  or  manifestly  against  the  evidence.^  But  unless  the  ver- 
dict is  clearly  against  the  evidence,  a  new  trial  will  not  be 
granted;*  especially  where   two  juries   have  determined  the 


'  Smith  V.  Thompson,  1  Cow.  221, 
note;  see  Adavis  v.  People,  47  111. 
376;  Jetvsbury  v.  Sperry,  85   111.  56. 

2  Davis  V.  People,  19  111.  74;  see 
Jieins  V.  People,  30  111.  256;  Adams 
V.  People,  47  111.  "376. 

J  Martin  v.  Ehrenfels,  24  111.  187; 
Bishop  V.  State,  9  Geo.  121;  Boston 
V.  Dana,  1  Gray  83;  People  v.  Car- 
mal,  1  Parker  C.  R.  255;  Folsom  v. 
Braitm,  5  Foster  114;  Burns  v.  Pain, 
8  Texas  159;  Clai'k  v.  Carter,  12 
Geo.  500;  U.  S.  v.  Eeid,  12  How. 
(U.  S.),  361;  Dajiav.  Tucker,  A  Johns. 
487;  Sergant  v.  Denniston,  5  Cow. 
106;  Voize  v.  Delcval,  1  Term  11; 
Grinnell  v.  PhiUips,  1  Mass.  542; 
Colemanv.  State,  28  Geo.  78:  Broiim 
V.  State,  28  Geo.  199;  Heins  v. 
People,  30  111.  256;  Allison  v. 
People,  45  111.  37;  but  see  Saicger  v. 
Stephenson,  Breese  24;  Reed  v. 
Thompson,  88  111.  245;  NiccoUs  v. 
Foster,  89  111.  386. 

*  Cunningham  v.  Magoun,  18  Pick. 
13;  Tyler  v.  Gray,  9  Geo. 408;  Drake  v. 


Surget,  36  Miss.  458;  Higgins  v.  Lee 
16  111.  495;  R.  R.  Co.  v.  Stvearengen. 
47  III.  206;  McDavid  v.  Blevins,  85 
111.  238. 

*  Tilley  v.  Spaidding,  44  111.  80; 
Bush  V.  Kindred,  5  Mass.  353;  Wait 
V.  McNeil,  7  Mass.  261;  Curtis  v. 
Jackson,  13  Mass.  507;  Lucasv.  Par- 
sons, 27  Geo.  593;  Clements  v.  Lit- 
tle, 28  Geo.  491;  Mississippi  y .  Cross, 
20  Ark.  443;  Young  v,  Wilson,  24 
Miss.  694;  Easterling  v.  Power,  12 
Cal.  88;  see  City  v.  French,  55  111. 
317;  Coal  Co.  v.  Lamprecht,  51  III. 
App.  649. 

"^  Bush  V.  Kindred,  5  Mass.  353; 
Coffin  V.  7ns.  Co.,  15  Pick.  291; 
Howell  V.  7ns.  Co.,  7  Ohio  276;  Hen- 
dry V.  Smith,  28  Geo.  308;  Tallahas- 
see V.  Macon,  8  Flor.  299;  Holden  v. 
Blo.vum,3o  Miss.  381;  Montgomery 
V.  Cidton,  23  Texas  156:  Weddle  v. 
Stark,  10  Cal.  301;  R.  R.  Co.  v.  Lee, 
87  111.  454;  Bell  v.  Gordon,  86  111. 
501. 


788  NEW    TRIALS. 

same  way;'  or  where  a  former  jury  could  not  agree;'  or  where 
the  verdict  is  against  the  party  having  the  burden  of  proof/ 
A  new  trial  can  only  be  granted  in  extraordinary  cases,  Avhere 
it  is  manifest  that  the  jurors  have  mistaken  or  abused  their 
trust;'  or  where  the  verdict  is  clearly  against  the  weight  of 
evidence/  It  will  not  be  granted  because  there  is  an  entire 
absence  of  direct  proof,  and  presumptions  alone  are  relied  on 
to  establish  the  necessary'-  facts/ 

Where  the  evidence  is  conflicting,  and  that  produced  by 
either  party,  considered  alone,  is  sufficient  to  require  a  verdict 
in  his  favor,  a  new  trial  will  not  be  granted  on  the  ground 
that  the  verdict  is  not  sustained  by  the  evidence.' 

4.  Excessive  or  inadequate  damages. — New  trials  may 
be  granted  for  excessive  or  inadequate  damages,  where  there 
are  fixed  rules  and  principles  whence  it  may  be  known  that 
there  is  an  error  in  the  verdict;  as  in  actions  on  contracts,  or 
for  torts  done  to  property,  the  value  of  which  may  be  ascer- 
tained.' And  whenever  the  court  is  satisfied  that  there  is  no 
reasonable  proportion  between  the  injury  and  the  compensa- 
tion, it  is  its  dut}'-  to  grant  a  new  trial."  The  damages,  how- 
ever, must  be  clearly  excessive  or  inadequate,  and  such  as 
everybody  would  cry  out  against,  and  not  merely  a  sum  larger 

^Barrett  v.  Rogers,  7  Mass.  291;  ''Stickler  v.  Otto,  86  111.  161; 
Cunningham V.  Magoun,  18  Pick.  13;  Hayes  v.  Houston,  86  111.  487:  Ad- 
Ramsey  V.  Hamilton,  14  Miss.  358.  dems  v.  Surer,  89  111.  482;  Hoicitt  v. 

"^  Baker  v.  Briggs,    8    Pick.    122;  Estelle,  92  111.  218;  Lewis  v.  Lewis, 

Rozar  v.  Burns,  13  Geo.  34.  92  111.  237;  Sugar  Co.  v.  Frazier,  26 

3  Cunningham  v.  Magoun,  18  Pick.  111.  App.  60. 

13,  ^Comm.  v.  Norfolk,  5  Mass.  435; 

"  Baker  v.  Briggs,  8  Pick.  122;  see  Barnard  v.  Poor,  21  Pick.  378;  Win- 
Webster  v.  Vickers,  2  Scam.  296:  El-  Chester  v.  Grosvenor,  44  111.  425;  see 
dridge  v.  Huntington,  2  Scam.  538.  Beveridge  v.  Welch,  7  Wis.  465. 
Dexter  v.  Cole,  6  Wis.  319;  R.  R.  Co.  ^Sam2)Son  v.  Smith,  15  Mass.  365; 
V.  Swearengen,  47  111.  206.  Stevenson  v.  Belnap,  6  Clark  (Iowa) 

5  Miller  v.  Baker,  20  Pick.  289;  97;  Lehman  v.  City,  29  Barb.  234; 
Coffin  y.  Ins.  Co.,  15  Pick.  291;  see  i2t/.  Co.  v.  JacAsow.  55  111.  492; 
Schwab  V.  Gingerick,  13  111.  697;  Ry.  Co.  v.  Hughes,  87  111.  94;  Ry. 
White  V.  Clayes,  32  111.  325;  R.  R.  Co.  v.  Payzant,  87111.  125;  Hennies 
Co.  V.  Hutchins,  34  111.  108.  v.  Vogel,  87  111.  242;  Kolb  v.  O'Brien, 

6  Blanchard  v.  Coidburn,  16  Mass.  86  111.  210;  Ry.  Co.  v.  Dewin,  86  111. 
345;  Rogers  v.  King,  12  Geo.  229.  296. 


NEW  TEIALS.  789 

or  smaller  tlian  the  judge  who  presided  at  the  trial  would  have 
given.' 

Where  it  is  apparent  the  jury  were  actuated  by  passion  and 
prejudice,  or  some  motive  other  than  a  desire  to  do  justice 
between  the  parties,  the  verdict,  if  excessive,  will  be  set  aside.'' 

Where  there  is  a  motion  for  a  new  trial  on  the  ground  of 
excessive  damages,  the  plaintiff  may,  if  he  chooses,  remit  a 
portion  of  the  verdict  to  obviate  the  objection.^ 

Where  the  verdict  gives  grossly  inadequate  damages  to  the 
plaintiff,  a  new  trial  may  be  granted  the  plaintiff  upon  the 
same  principle  that  like  relief  is  granted  to  a  defendant  when 
excessive  damages  are  assessed  by  the  jury.* 

5.  Admitting  improper,  or  refusing  proper  eyidence. — 
If  the  court  errs  in  admitting  or  refusing  testimony,  a  new 
trial  will  be  granted;'  but  if  the  improper  testimony  is  not  ob- 
jected to  on  the  trial,  and  the  whole  evidence  has  been  weighed 
by  the  jury,  the  court  will  not  disturb  the  verdict." 

A  verdict  will  not  be  set  aside  because  evidence  has  been 
erroneously  admitted,  if  such  evidence  is  entirely  unimportant,' 
nor  when  a  new  trial  must  result  in  the  same  verdict.^  Bat 
the  admission  of  incompetent  or  irrelevant  testimony,  calcu- 
lated to  make  an  impression  on  the  minds  of  the  jury,  is  a  good 

1  Pleydell   v.    Earle,  7  Term.  529;  Hunt,  24  111.  597;  Smith  v.  Gillett, 

Shnte  V.    Barrett,  7  Pick.  82;  Jen-  50  111.  290. 

nings  v.  Loring,  5  Ind.  250;  Clark  v.  ^  Harris  y.  Doe,  4  Blackf.  369;  see 

WhitaJcer,  19  Conn.  319;  Letton  v.  Oillham  v.  Bank,  2  Scam.  245. 

Young,  2  Mete.  (Ky.)  558;  Lucas  v.  '  Turnpike   Co.   v.   Berry,  ^  Ind. 

Parsons,   27  Geo.    593;  Ry.    Co.  v.  286;  State  v.  Laivson,  14  Ark.  114; 

Willianis,55l\\.18'r,  City  V.  French,  School    v.    Bragdon,   3  Foster  507; 

55  111.  318;  Elgin  v.  Renwick,  86  111.  Bird  v.  State,  14  Geo.  43;  Santillan 

498.  V.   Moses,    1    Cal.    92;    Litchfield  v. 

"^Ry.  Co.  V.  Barnett,   56  111.  App.  Londonderry,  39  N.  H.247;  Dralce  v. 

384.  Surget,  36  Miss.  458;  Dodge  v.  Gi^ee- 

^Ry.  Co.  V.    Wrixon,  150  111.  532,  ley,  31  Me.  343;  Mattingly  v.  Crow- 

and  cases  there  cited.  ley,  42  111.  300;  see  Roidey  v.  Hughes, 

4  Sutherland    on     Dam.    815-816;  40  111.  316;  J/c/v7c/ia ?i  v.  A/eBean,  45 

Carr  v.  Miner,  42  111.  179;  James  v.  111.  228;  City  v.  Patterson,  50  111.  61. 

Morey,  44  111.  352;  Hackett  v.  Pratt,  ^Marshall  v.  Morris,  16  Geo.  368; 

52  111.  App.  346.  Cogan  v.  Frishy,  36  Miss.  178;  Lynes 

^Hunt    V.    Adams,   7    Mass.    518;  -v.  State, 'dQ'Miss.  Qll;  ?,ee  Mattingly 

Mercer  v.  Sayre,  7  Johns.  306;  San-  v.  Crowley,  42  111.  300;  Machine  Co. 

tillan  V,  Moses,  1  Cal.  92;  Roundy  v.  v.  Rosine,  87  111.  105. 


790  NEW   TRIALS. 

ground  for  a  new  trial;  for  it  is  impossible  to  say  what  influ- 
ence such  testimony  may  have  exerted,' 

The  refusal  to  admit  proper  evidence  is  not  a  ground  for 
setting  aside  the  verdict,  if  the  excepting  party  was  not  thereby 
injured.  Where  the  deposition  of  a  witness  was  erroneously 
rejected,  and  the  party  afterward  procured  the  attendance  and 
testimony  of  the  witness  at  the  trial,  it  was  held  that  the  re- 
jection of  the  deposition  was  not  a  ground  for  a  new  trial.'' 

6.  Error  in  the  charge  to  the  jury. — Error  of  the  court 
in  improperly  charging  or  refusing  to  charge  the  jury,  is  a 
ground  for  a  new  trial.  The  following  observations  under 
this  head  refer  to  the  statutory  provisions  and  the  adjudica- 
tions and  practice  in  Illinois,  respecting  instructions  to  the  jury. 

It  is  provided  by  the  statute  that  the  court,  in  charging  the 
jury,  shall  instruct  only  as  to  the  law  of  the  case;  and  all  in- 
structions must  be  in  writing.^  It  is  usual  for  the  counsel  to 
prepare  the  instructions,  and  submit  them  to  the  judge;  and 
the  statute  requires  the  judge  to  write  on  the  margin  of  such 
as  he  approves,  the  word  "  given,"  and  on  the  margin  of  such 
as  he  can  not  give  the  word  "  refused."  After  instructions 
are  given,  he  may  not  qualify,  modify,  or  in  any  manner  ex- 
plain them,  otherwise  than  in  writing;*  but  he  is  not  prohib- 
ited from  giving,  of  his  own  accord,  any  written  instructions 
applicable  to  the  case,' 

Where  the  parties  agree  to  a  trial  by  the  court,  without  a 
jury,  "  upon  such  trial  either  party  may,  within  such  time  as 
the  court  may  require,  submit  to  the  court  written  proposi- 
tions to  be  held  as  law  in  the  decision  of  the  case,  upon  which 

^Dresser   v.    Ainsworth,   9   Barb.  (1893),  1078;  2  Starr  &  Curtis  1815; 

619;  Boyle  v.  Coleman,  13  Barb.  42;  Ray  v. Wooters, 19  III.  82;  see  Bloomer 

Thurmond  v.    Trammall,  22  Texas  \.Therrill,lll\l.48S;3Iayerv.Meod, 

257.  83  111.  19;  Reinbaek  v.    Crabtree,  77 

2  Clough  V.  Bowman,  15  N.  H.  504.  III.  182;  Ryan  v.  Donnelly,  71  111.  100 ; 
see  Bidl  v.  Griswold,  19  111.  631.  Packet  Co.  v.  Binninger,  70  111.  571; 

3  2  Starr  &  Curtis  1814;  Rev.  Stat,  Clapp  v.  Martin,  33  lU.  App.  439. 
(1893),  1077;  Rev.  Stat,  (1895),  1161;  ^  Broum  v,  Peojile,  4  Gilm.  439;  R. 
R.  R.  Co.  V.  Hammer,  85  111.  526;  R.  Co.  v.  Jacobs,  20111  478;  Stumps 
Abingdon  v.  Meadows,  28  111.  App.  v.  Kelley,  22  111.  140;  Ins.  Co.  v.  Pul- 
442.  ver,  126  111.  332;  Aneals  v.   People, 

iRev.  Stat.  (1895),  1162;  Rev.  Stat.      134  111.  416. 


NEW    TRIALS. 


791 


the  court  shall  write  '  refused '  or  '  held,'  as  he  shall  be  of 
opinion  is  the  law,  or  modify  the  same,  to  which  either  party 
may  except  as  to  other  opinions  of  the  court."  ' 

See  Pr'oj)ositions  of  Law,  Chapter  37,  j)ost. 

Instructions  must  be  based  on  the  evidence,  and  applicable 
to  the  case,  and  not  contain  mere  abstract  propositions.^  They 
should  be.  concise,  briefly  presenting  the  points  of  law  on 
which  the  party  relies,  and  not  argumentative;'  and  they 
ought  to  be  as  few  and  simple  as  possible,  as  otherwise  they 
are  likely  to  mislead  the  jury." 

Instructions  should  present  the  law  of  the  case,  leaving  the 
facts  to  the  jury,  and  not  assume  facts  to  have  been  proved.^ 

If  instructions  given  were  calculated  to  mislead,  and  must 
have  misled  the  jury,  it  is  ground  for  a  new  trial,  or  a  reversal 
of  the  judgment.® 

When  two  instructions  are  asked,  both  containing  the  same 
principle  of  law,  the  court  may  give  the  one  and  refuse  the 
other.' 


iRev.  Stat.  (1893),  1076;  Rev.  Stat. 
(1895),  1160;  2  Starr  &  Curtis  1808; 
Kepperly  v.  Ramsden,  83  111.  354; 
McKinzie  v.  Remington,  79  111.  888. 

'^  See  Humphreys  v.  Collier,  1 
Scam.  47;  Hamilton  v.  Hunt,  14  III. 
472;  Coughlin  v.  People,  18  111.  266; 
Riley  v.  Dickens,  19  111.  29;  R.  R. 
Co.  V.  George,  19  lU.  510;  Hosley  v. 
Brooks,  20  111.  115;  County  v.  Buck, 
27  111.  440;  Harris  v.  3Iiner,  28  111. 
135;  Pfund  v.  Zimmerman,  29  111, 
289;  Hessing  v.  McCloskey,  37111.341; 
R.  R.  Co.  V.  3IcKee,  43  111.  119;  Ken- 
nedy V.  People,  44  111.  283:  Harnit 
V.  Thompson,  46  III.  460;  Bullock  v. 
Marrott,  49  111.  62;  Chairman  v. 
Caiorey,  50  111.  512;  Collins  v.  Wa- 
ters, 54  111.  485;  Wray  v.  R.  R.  Co., 
86  111.  424. 

'  Merritt  v.  Merritt,  20  111.  65;  see 
Cushman  v.  Cogswell,  86  111.  62;  Ins. 
Co.  V.  Nelson,  75  111.  548. 

■*  Cemetery  Ass'n  v.  Smith,  24  111. 
480;  Newkirk  v.  Cone,  18  lU.  449;  see 


Higgins  v.  Lee,  16  111.  497;  Ins.  Co. 
V.  Crawford,  89  lU,  62;  Moshier  v. 
Kitchell,  87  111.  18. 

*  See  Sherman  v.  Dutch,  16  111. 
283;  Wall  v.  Goodenough,  16  III.  415; 
Gehrv.  Hagerman,  26  111.  438;  Conk- 
loright  v.  People,  35  111.  204;  Winne 
V.  Hammond,  37  111.  99;  Haivk  v. 
Ridgivay,  33  111.  473;  Sinclair  v. 
Berndt,  87  111.  174. 

^  Broivn  v.  Graham,  24  111.  628; 
see  Gibson  v.  Webster,  44  111.  483; 
Bullock  V.  Marrott,  49  III.  62;  Col- 
lins V.  Waters,  54  111,  485;  Orr  v, 
Jason,  1  Bradw,  439;  Sinnet  v, 
Boicman,  151  lU,  156. 

''May  V.  Tallman,  20  111.  443;  Cur- 
tiss  V.  Martin,  20  111.  557;  Montag 
V.  Linn,  23  111.  551;  College  v.  Mcin- 
tosh, 37  Miss.  671;  see  Hessing  x.  Mc- 
Closkey, 37 111.341;  Bowen  v.  Schuler, 
41  111.  192;  Halty  v.  Market,  44  111. 
225;  McKichan  v,  McBean,  45 111.228; 
Underwood  v.  White,  45  111.  437; 
Ware  v.  Gilmore,  49  111.  278;  Free- 


792 


NEW   TRIALS. 


If  substantial  justice  has  been  done,  even  though  improper 
instructions  have  been  given,  or  proper  instructions  re- 
fused, the  verdict  will  not  be  set  aside.'  And  although  a 
verdict  may  be  clearly  wrong,  yet  if  another  instruction,  on 
behalf  of  the  same  party,  puts  the  case  fairly  before  the  jury, 
the  finding  will  not  be  disturbed,' 

7.  Newly  discovered  evidence. — In  order  to  support  a 
motion  for  a  new  trial  upon  the  ground  of  newly  discovered 
evidence,  it  ought  to  be  made  to  appear  that  the  testimony 
has  been  discovered  since  the  trial,  or  that  no  laches  is  imputa- 
ble to  the  party,  and  that  the  testimony  is  material.  If  the 
party  knew  of  the  existence  of  the  testimony,  and  could  not 
procure  it  in  time,  he  ought  to  have  applied  for  a  postpone- 
ment of  the  trial.' 

A  new  trial  will  not  in  general  be  granted  for  the  purpose 
of  introducing  newly  discovered  evidence,  merely  cumulative 
in  its  character,  and  not  conclusive,*  or  which  would  onlv  be 


man  v.  Tinsley,  50  111.  497:  Calhoun 
V.  O'Neal,  53  111.  354;  Franks  v. 
Welch,  89  111.  38;  Scott  v.  Delany, 
87  111.  146;  Keeler  v.  Stuppe,  86  111. 
309;  Holcomb  v.  Peojjle,  79  111.  409; 
Chicago  v.  Hessing,  83  111.  204;  Ins. 
Co.  V.  Jackson,  83  111.  303. 

'  Neivkirk  v.  Cone,  18  111,  449; 
Dishon  v.  Schorr,  19  111.  59;  Elam 
V.  Badger,  23  111.  498;  Schwarz  v. 
Schivarz.  26  111.  81;  Warren  v.  Dick- 
son, 27  111.  115;  McConner  v.  Kibbe, 
33  111.  175;  Curtis  v.  Sage.  3511122; 
Jns.  Co.  V.  Frost.  37  111.  333;  Daily 
V.  Daily,  64  111.  329;  Tuttls  v.  Rob- 
inson, 78  111.  332;  Chicago  v.  Hess- 
ing,  83111.  204;  Bromley  \.  Goodwin, 
95  111.  118. 

2  Warren  v,  Dickson,  27  111.  115; 
Elam  V.  Badger,  23  111,  498:  R.  R. 
Co.  V.  Sivearingen,  47  111.  206;  see 
Brown  v.  Graham,  24  111,  628;  Mfg. 
Co.  V.  Ballon,  71  111.  417;  Wallace 
V.  People,  159  111.  446. 

'■Mill  Co.  V.  Gillen,  100  111.  52;  R. 
R.  Co.  V.  Sullivan,  21  111,  App,  580; 


Classen  v.  Ciiddigan,  21  111,  App. 
591;  see  Crozier  v.  Cooper,  14  111. 
139;  Keenan  v.  People,  104  111.  385; 
Pipe  Co.  V.  Johnson,  44  111.  App. 
224;  Dyke  v.  DeYoung,  133  111.  82. 

*  Morrison  v,  Stewart,  24  111.  24; 
Adams  v.  People,  47  111.  376;  R.  R. 
Co.  V.  Seitz,  53  111.  452;  Harvey  v. 
Collins,  89  111.  255;  Abrahams  v. 
Weller,  87  111.  179;  Emory  v.  Addis, 
71  111.  273;  Fidler  v.  Little,  69  111, 
229;  Bell  v.  Gardner,  77  111.  319; 
Wright  v,  Goidd,  73  lU.  56;  Cha7n- 
pion  V.  Ullmer,  70  111.  322;  Dyer  v. 
People,  84  111.  624;  Elgin  v.  Renivick, 
86  111.  498;  Klein  v.  Peojjle,  113  111. 
596:  Laird  v.  Warren,  92  111.  204; 
Friedbergv.  People,  102111. 160;  Sah- 
lingerx.  People,  102  111.  241;  Monroe 
V.  Snow,  131  111.  126;  Plumb  v.  Camp- 
bell, 129  111.  101;  City  v.  Merrill, 
124  111.  522;  O'Neil  v.  O'Neil,  123  III. 
361;  Petefishv.  Watkins,  124  111. 
384;  Bums  v.  People,  126  111.  282; 
Ry.  Co.  V.  Clough,  134  111.  586:  Lang- 
don  V.  People,  133  111.  388;  Spahn  v. 


NEW   TRIALS.  ^93 

in  mitigation  of  the  damages; '  nor  for  tlie  purpose  of  impeach- 
ing the  testimony  given  on  the  trial."  But  cases  may  arise  that 
may  require  a  relaxation  of  the  latter  rule  to  prevent  a  palpa- 
ble wrong,^  and  if  the  new  evidence  goes  to  impeach  the 
whole  of  the  opposite  party's  case,  by  the  imputation  of  fraud, 
a  new  trial  will  sometimes  be  granted — as  where  payment 
was  sworn  to  upon  the  trial  by  two  witnesses,  who,  there  was 
strong  reason  to  believe,  had  been  tampered  with/  Where 
the  newly  discovered  evidence  is  not  cumulative  in  regard  to 
the  particular  point  to  which  it  relates,  and  its  importance 
could  not  have  been  foreseen,  and  it  strengthens  the  conviction 
that  justice  has  not  been  done,  a  new  trial  may  be  granted/ 

A  new  trial  may  be  awarded  to  enable  a  defendant  to  prove 
an  alihl,  but  this  will  be  done  with  great  caution/ 

The  affidavit  in  support  of  an  application  for  a  new  trial 
on  the  ground  of  newly  discovered  evidence,  must  fully  set 
forth  such  evidence,'  and  must  show  that  it  has  been  dis- 
covered since  the  trial;  that  it  is  material  to  the  issue;  that  it 
is  true;  that  it  is  not  cumulative;  that  it  does  not  go  to 
impeach  the  character  of  a  witness;  and  that  it  could  not  have 
been  produced  on  the  trial  by  the  use  of  due  diligence/  And 
the  application  should  be  supported  by  the  affi  lavit  of  the 
witness  by  whom  it  is  proposed  to  prove  the  matters  relied 
on,  or  some  excuse  should  be  shown  for  not  producing  such 
affidavit/ 

8.     Absence  or  mistakes  of  witnesses. — Anew  trial  will 

People,  1 87  111.  538;  Lilly  v.  People,  *  Peterson  v.  Barry,  A  Blnn.   481; 

148  111.  467.  Bixby  v.  State,  15  Ark.  395. 

1  Schlenker  v.  Risley,  3  Scam.  483.  ^  Wilder  v.  Greenlee,   49  lU.   253; 

*  Ricqiiet  v.  McKay,  2  Blackf.  465;  Schireyer  v.  Anstett,  2  Bradvv.  335. 

Bland  v.  State,  2  Blackf.  608;  Mcln-  ^  Wilson  v.  People,  26  111.  434. 

tire  V.  Young,  6  Blackf.  498;  Martin  ''Perry  v.  Cochran,  1  Cal.  180. 

V.  Ehrenfels,  24  111,  187;  see  O'Reily  s  Crazier    v.  Cooper,    14  111,  139 

V.  Fitzgerald,   40  111.    310;  Besse  v.  see  Ritchie   v.    West,    23    111.    385 

Sawyer,  28  111.  App.  248;  Monroe  v.  Murphy    v.  McGrath,    79   111.    594 

Snow,  131  111.  126.  Chapman  v.  Chapman,  129  111.  386 

3  Cochran  v.  Ammon,  16  111.  316;  Booth  v.     Tabbernor,    23  111.   App. 

Levinings    v.    State,    13  Geo.    513;  173. 

Ham  V.  Ham,  dd  Me.  2m;  Gardner  V.  ^  Coivan    v.    Smith,    3.5    111.   416; 

Gardner,  2  Gray  434;  Dyer  v .  People,  Emory  v.  Addis,  71  111.  273;  Alholtz 

84  lU.  624.  V.  Durfee,  25  lU.  App.  43. 


79-i  NEW   TEIALS. 

sometimes  be  granted  on  account  of  the  unavoidable  absence 
of  witnesses.'  But  it  must  be  where  the  party  was  so  situated 
that  a  continuance  could  not  be  had;  for  if  a  party,  knowing 
his  witnesses  to  be  absent,  chooses  to  risk  a  trial  without  their 
testimony,  he  ought  to  abide  by  the  result;  ^  and  a  new  trial 
is  never  granted  where  the  party  has  been  guilty  of  neglect  in 
not  coming  prepared  with  evidence  which  he  knew  to  exist, 
and  might  have  produced  at  the  trial,  or  in  not  going  into  the 
examination  of  the  evidence.'  But  if  the  attendance  of  a  ma- 
terial witness  on  one  side  is  prevented  by  the  fraud  or  miscon- 
duct of  the  other  pa,rty,  a  new  trial  will  be  granted.* 

A  want  of  recollection  of  a  fact  by  a  party,  which  by  due 
attention  might  have  been  remembered,  is  not  a  ground  for 
granting  a  new  trial.*  So,  it  is  said,  if  a  witness  has,  from 
want  of  attention  or  from  not  being  prepared,  made  a  mistake 
in  giving  his  evidence,  a  new  trial  will  not  be  granted,  because 
this  would  be  extremely  dangerous  in  its  consequences.^ 
But  in  other  cases  this  rule  is  denied,  and  it  is  laid  down  that 
if  a  party  is  nonsuited  by  the  mistake  of  a  witness  in  a  material 
part  of  his  testimony,  a  new  trial  ought  to  be  granted.'  A 
motion  for  a  new  trial  on  account  of  the  absence  of  a  material 
witness  should  be  supported  b}'-  the  affidavit  of  the  witness, 
or  some  excuse  should  be  shown  for  not  producing  it."  If 
the  testimony  of  witnesses,  which  occasioned  a  verdict,  was 
founded  upon,  or  derived  credit  from,  particular  circumstances, 
and  those  circumstances  are  afterwards  clearly  shown  not  to 
have  existed,  a  new  trial  Avill  be  granted.' 

9.     Surprise.— Where  a  party  has  been  vigilant  in  prepar- 

'  Bo7id   V.    Cutter,    7  Mass.    205;  t  Bond  v.  Cutter,  7  Mass.  205. 

Synith    v.    Chapel,    36    Minn.    180;  ^ Steinbach  v.  Ins.    Co.,  2    Caine 

Smith  V.  State,  58  Iowa  487;  Servis  129;   Say.   27;    O'Kelly  v.  Felker,  71 

V.  Cooper,  33  N.  J.  L.  68.  Ga.  771. 

2  Wits   V.    Polehampton,  2  Salk.  i  2  Anst.  517;  Say.  28;  Hewlett  v. 

645.  C/mrc/iZet/,  STaunt.  277;  Bicliardson 

^3MH}er  x.  Sayre,  7  Johns.  306.  v.  Fvsher,  1  Bing.  145. 

4  Wilkinson  v.  Payne,  2  Salk.  647;  «  Coioan  v.  Smith,  35  111.  416. 

Stra.  691;  IWils.  98;  Gistx.  Mason,  ^Lister  v.  Mundell,  1  Bos.  &  Pul. 

1  T.  R.  84;  Vernon  x.  Hankey,  2  T.  427. 
R.  113;  Casey  v.  King,    5  Geo.  75; 
Crafts  V.  Ins.  Co.,  36  N.  H.  44. 


NEW    TRIALS.  T95 

ing  for  trial,  using  every  reasonable  precaution,  and  is  taken 
by  surprise  by  the  introduction  of  evidence  which  he  could 
not  reasonably  have  anticipated,  and  which  he  can  overcome 
on  another  trial,  such  evidence  contributing  to  an  unfavorable 
verdict,  he  will  be  entitled  to  a  new  trial.'  The  surprise  must 
be  in  an  essential  matter,  and  produce  injury,  and  must  not  be 
the  consequence  of  the  party's  own  neglect  or  inattention;  and 
all  reasonable  efforts  must  be  made  to  overcome  the  evidence 
which  works  the  surprise.^ 

Death  of  trial  judge. — When  the  judge  before  whom  the 
cause  was  tried  dies  after  verdict  and  pending  or  before  the 
determination  of  a  motion  for  a  new  trial,  the  succeeding  judge 
has  power  to  decide  the  motion  and  grant  or  overrule  the 
same,  and  enter  such  judgment  or  order  as  shall  to  justice  ap- 
pertain.^ 

Improper  remarks  of  counsel. — Eemarks  of  counsel  in  ar- 
guments to  the  jury  are  not,  as  a  general  rule,  sufficient  cause  to 
set  aside  the  verdict,  unless  they  are  of  such  an  inflammatory 
nature  as  to  prejudice  the  minds  of  the  jury.*  But  where  a 
jury  is  improperly  influenced  by  remarks,  allusions,  or  com- 
ments outside  of  the  evidence,  made  by  counsel  during  the 
progress  or  the  argument  of  a  cause  on  trial,  the  verdict  should 
be  set  aside. 

Counsel  should  confine  their  discussion  to  the  evidence  in 
the  particular  case,  and  avoid  intemperate  and  extravagant 
statements  of  matters  not  pertinent  and  which  are  calculated 
to  arouse  the  prejudice  and  passion  of  jurors  and  lead  to  un- 
just results.* 

'  Holbrook  v.   Nichol,  36  111.   162.  Hac'ett  v.    Smelsley,    11    III.  109; 

Parfcsv.iV/c/ioZs,  20111.  App.  143.  Chase  v.   Chicago,   20  Bradw.  278; 

«i2.  R.  Co.  V.  Voshurgh,  Ad  III  311;  HaJIoran  v.  Halloran,  137  III.  100; 

Thovipson  V.  Anthony,  48  111.   468;  Hollou-ay   v.  Johnson,  28   111.  App. 

R.  R.  Co.  V.  Rose,  72  111.  183;  Slade  463;  Ry.  Co.  v,  Barron,  57  111.  App. 

V.  McClure,  76  111.  319;  I.  &  W.  Co.  469;  Ry.  Co.  v.  Cullison,iO  111.  App. 

V.  Badger,  30  111.  App.  320;  W.  C.  67. 

Co.  V.  Lapp,  35  111.  App.  374.  '-R-  R-   Co.  v.  May,  33  III.  App. 

i  People    V,    McCcmnell,    155     III  366;  Freeman  v.   Dempsey,   41   111. 

192,  and  cases  there  cited.  App.  554;  R.  R.  Co.  v.  Johnson,  116 

*R.   R.  Co.  V.   Long,  ^2  111.  App.  lU-  206;   Ry.   Co.  v.  Annis,  62  111. 

670;  Kennedy  v.   Sullivan,  136  111.  App.  180. 
94;   see  Henniesw.  Vogel,  87  111.  244; 


798  NEW   TRIALS. 

"Where  the  language  of  counsel  tends  to  excite  passion  and 
prejudice  to  a  degree  that  will  probably  cloud  the  judgment, 
and  therefore  improperly  affect  the  verdict,  the  court  should 
properly  check  and  rebuke  him;  and  for  a  failure  in  this  re- 
spect, a  verdict  in  favor  of  the  party  whose  counsel  thus 
abuses  his  position  should  be  set  aside.  But  it  must  not  be 
assumed  that  every  misstatement  of  law  or  fact  will  have  the 
effect  of  exciting  improper  prejudice  in  the  jury.' 

A  court  hearing  counsel,  under  pretense  of  arguing  a  case, 
making  statements  of  matters  to  the  jury  not  in  evidence, 
or  pertinent  as  illustrative  of  matters  in  evidence,  should 
promptly  stop  him,  explain  to  the  jury  the  impropriety  of  his 
language,  and  take  such  measures  as  are  appropriate  to  pre- 
vent a  repetition  of  such  misconduct,  and  for  a  failure  of  duty 
in  this  respect  manifestly  affecting  the  result,  the  judgmc^it 
should  be  reversed.  In  such  case,  the  counsel  whose  client  is 
unfavorably  affected  by  such  statements,  should  call  the  atten- 
tion of  the  court  to  them  at  the  time,  lest  the  court  might 
not  otherwise  have  noticed  the  same.^ 

Statutory  provisions  in  Illinois. — "Whenever  an  entire 
verdict  shall  be  given  on  several  counts,  the  same  shall  not  be 
set  aside  or  reversed  on  the  ground  of  any  defective  count, 
if  one  or  more  of  the  counts  in  the  declaration  be  sufficient  to 
sustain  the  verdict." 

"  If  either  party  may  wish  to  except  to  the  verdict,  or  for 
other  causes  to  move  for  a  new  trial,  or  in  arrest  of  judgment, 
he  shall,  before  final  judgment  be  entered,  or  during  the  term 
it  is  entered,^  by  himself  or  counsel,  file  the  points  in  writing, 
particularly  specifying  the  grounds  of  such  motion;  and  final 
judgment  shall  thereupon  be  stayed  until  such  motion  can  be 
heard  by  the  court."  (The  motion  should  be  made  before  judg- 
ment is  rendered,  although  by  the  statute  the  "  points  "  may 
be  filed  at  any  time  during  the  term.) 

Where  a  motion  for  a  new  trial  is  submitted  without  any 
statement  in  writing  of  the  grounds  therefor,  without  objec- 

1  Henry  v.  R.  R.  Co.,  121  III.  264;  619;  Ry.  Co.  v.  Wilson,  56  lU.  App. 
Siebert  v.  People,  143  111.  571.  364. 

2  R.   R.   Co.  V.  Fletcher,  128  111.  ^  Campbell  v.  Conover,  26  111.  64. 


NEW   TRIALS.  797 

tions,  such  statement  will  be  treated  as  waived,  and  the  want 
of  it  can  not  be  urged  in  the  appellate  court/ 

A  verdict  may  not  be  set  aside  for  irregularity  only,  unless 
cause  is  shown  therefor  during  the  term  in  which  the  verdict 
is  rendered, 

Ko  more  than  two  new  trials  of  a  cause  may  be  granted  to 
the  same  party,  on  the  same  grounds,^ 

In  all  cases  where  a  new  trial  is  granted  on  account  of  im- 
proper instructions  given,  or  improper  evidence  admitted,  or 
because  the  verdict  is  against  the  weight  of  the  evidence,  "  or 
for  any  other  cause  not  the  fault  of  the  party  applying,"  it  is 
to  be  without  costs,  and  as  of  right. 

Where  a  cause  is  tried  b\'^  the  court,  without  a  jury,  excep- 
tion may  be  taken  to  any  decision  of  the  court,  "  whether  such 
exception  relates  to  receiving  improper,  or  rejecting  proper 
testimony,  or  to  the  final  judgment  of  the  court  upon  the  law 
and  the  evidence."  ^ 

New  trial  by  agreement. — The  granting  of  a  new  trial  is  a 
judicial  function,  and  although  both  parties  may  be  dissatis- 
fied with  the  verdict  and  ask  that  it  be  set  aside  it  is  still  for 
the  court  to  determine  whether  or  not  a  new  trial  shall  be 
granted.* 

Mode  of  applying  for  a  new  trial. — Application  for  a  new 
trial  is  made  by  motion,  which  should  be  in  writing;  and  in 
Illinois,  as  above  mentioned,  written  specifications  of  the 
grounds  of  the  motion  are  required  to  be  filed.  Such  motion, 
and  the  reason  therefor,  may  be  framed  as  follows : 

No.  384.    Motion  by  defendant  for  new  trial. 

In  the Court. 

Term,  18—. 

C.  D.  ) 
ats.   ^Assumpsit. 
A.  B.  )      And  now  cx)mes  the  defendant,  by  his  attorney  aforesaid,  and 

»i2.  R.  Co.  V.  McNath,  91  111.  104;  ^2  Starr  &  Curtis  1826;  Rev.  Stat. 

May  V.  May,  36  111.  App.  77;  Brom-  (1893)  1079;  Rev.  Stat.  (1895)  1163. 
ley  V.  People,  150  111.  297.  *  Sinedley  v.  By.  Co.,  45   111.  App. 

5  Rev.  Stat.  (1893)  1078;  Rev.  Stat.  426;  City   v.  McEniry,  39  111.  App. 

(1895)  1162;   2  Starr  &  Curtis  1818;  218;  Aiken  v.  Bruen,  21   Ind.  137; 

see  Silsbee  v.  Uicas,  53  111.  479:  De  Phelan  v.  Rtitz,  15  Cal.  90;   Xichols 

Soto  v.  Buckles,  40  111.  App.  86.  v.  Ey.  Co.,  10  Bosw.  (N.  Y.)  260. 


T98  NEW   TRIALS. 

moves  the  court  to  set  aside  the  verdict  rendered,  and  to  grant  a  new  trial 
in  this  cause. 

And  for  grounds  of  his  motion  the  defendant  shows  to  the  court  the  fol- 
lowing, to  wit : 

1.  The  court  admitted,  on  the  trial,  improper  evidence  on  the  part  of 
the  plaintiff,  that  is  to  say  {here  specify  such  evidence.) 

2.  The  court  refused  to  admit  proper  evidence  offered  by  the  defendant, 
that  is  to  say  {here  specify  the  evidence.) 

3.  The  court  improperly  gave  to  the  jury  the  second,  fourth  and  fifth 
instructions  asked  by  the  plaintiff. 

4.  The  court  improperly  refused  to  give  the  third,  sixth  and  seventh  in- 
structions offered  by  the  defendant. 

5.  The  verdict  is  contrary  to  the  law  and  the  evidence  in  the  case. 
{Any  other  grounds  may  he  specified  in  like  manner.) 

G.  H.,  Attorney  for  Defendant. 

A  motion  for  a  new  trial  should  be  made  before  a  motion  in 
arrest  of  judgment,  as  the  latter  is,  strictly  speaking,  a  waiver 
of  the  former.' 

Where  the  cause  is  tried  by  the  court,  without  a  jury,  it  is 
not  necessary  that  a  motion  for  a  new  trial  should  be  made,  in 
order  that  the  evidence  in  the  cause  may  be  reviewed  in  the 
supreme  court." 

Setting  aside  default  and  granting  new  trial.---The  law 
intends  that  every  one  shall  have  a  fair  trial;  and  if  a  party, 
by  misfortune  or  accident,  without  any  fault  on  his  part,  has 
been  unable  to  present  his  defense  before  a  default  is  taken, 
the  court  will,  on  a  proper  case  shown  by  affidavit,  set  aside 
the  default,  and  grant  a  hearing  on  the  merits,  on  such  terms 
as  the  justice  of  the  case  may  require.  The  terms  usually  im- 
posed in  such  case  are  the  payment  of  costs.^ 

The  statute  of  Illinois  *  provides  that  "  the  court  may,  in 
its  discretion,  before  final  judgment,  set  aside  any  default 
upon  good  and  sufficient  cause,  upon  affidavit,  upon  such  terms 
and  conditions  as  shall  be  deemed  reasonable." 

An  application  to  set  aside  a  default  is  addressed  to  the 

I  Hallv.  Nees,  27  III.  411;  see  Parr  ^  Yost  v.  Worls,  41  111.  App.  556; 

V.  Van  Home,  4:0  m.  122;   Board  of  Burhansv.  Village,  138  111.  147. 

Ed.  V.  Hoag,  21  111.  App.  588.  -"Rev.  Stat.  (1893),  1076;  Eev.  Stat. 

■^Mahoney  v.  Davis,   44  111.   288;  (1895)  1160;  2  Starr  &  Curtis,   1805; 

Sands    v.     Wacaser,    149    111.    580;  Harmison  v.    Clark,  1   Scam.    131; 

/Sands  v.  Kagy,  150  111.  109.  Gillett  v.  Stone,  1  Scam.  539. 


NEW    TRIALS.  799 

discretion  of  the  court,  and  the  decision  thereon  can  not  be 
assigned  for  error,'  unless  there  has  been  a  gross  abuse  of  such 
discretion.' 

The  application  must  be  made  in  apt  time.  It  is  too  late  to 
apply  after  a  term  of  the  court  has  intervened  between  the 
term  at  which  the  default  was  taken  and  that  at  which  the 
motion  is  made,  without  showing  a  good  reason  for  such 
delay.' 

The  party  making  application  to  have  a  default  set  aside 
must  support  it  by  an  affidavit,  showing  that  the  default  w^as 
,  taken  without  any  fault  or  negligence  on  his  part,  and  that 
there  is  merit  in  his  defense,  stating  what  such  defense  is,  so 
that  the  court  may  see  whether  it  is  sufficient.*  The  appli- 
cation should  be  made  at  the  term  at  w^hich  the  default  is 
entered.* 

The  fact  that  counsel,  whom  the  defendant  supposed  he  had 
engaged  to  make  his  defense,  failed  to  do  so,  does  not  make 
it  imperative  on  the  court  to  set  aside  a  default  entered  against 
hira,  when  there  was  time  for  him  to  have  given  his  personal 
attention  to  his  defense.' 

The  motion  will  not   be  granted  at  a  subsequent  term  for 

'  Garner  v.   Crenshmv,   1    Scam.  sell.  89  111.  113;  Souerhry  v.  Fisher, 

143;  Hannison  v.     Clark,    1  iScam.  62  111.  135. 

131;    Wallace  v.   Jerome,   1   Scam.  ^  Ryder  v.  Thviss,  3  Scam.  4;   see 

5^4;  Gillett  v.  Stone,  1  Scam.    539;  Messervy  v,  Beckwith,  41   III.   452; 

Woodruff   V.    Tyler,    5    Gilm.  457;  Hibbard  v.  Mueller,  86  111.  256;  R. 

Mitchell  V.     Chicago.    40    111.     174;  R.  Co.  v.  Coss,  73  111.  394. 

Bowman  v.   Wood,  41   111.  203;  see  *  Rich  v.  Hathau-ay,    18   111.    548; 

Moiry.  Hopkins,  21  1)1.  bol;  Fergus  Roberts  x.  Corby,  86  111.  182;  Men- 

V.  Mfg.  Co.,  71  III.   51;  R.   R.  Co.  v.  dell  v.  Kimball,  85  lU.  582;  Edwards 

Mitchell,  74  111.  394;  Leather  Co.  v.  v.  McKay,  73  lU.  570;    Mfg.  Co.  v. 

Woodley,  75  111.  435;  Constantine  v.  Thomas,  17  111.  App.  235;    Slack  v. 

WdlS'dm.  192;  Hitchcock  v.Herzer,  Casey,   22  111.  App.  412;  Schultz  v. 

90  111.  543;  Wheeler  v.  Alexander,  30  Meiselbar,  144  111.  26. 

111.  App.  502;  Hall  v.  Bank,  133  III.  s  Messervy  v.  Beckwith,  41  111.  452; 

234;  Kingsland  v.  Koeppe,  137  111.  Scales  v.  Lobar,  51111.232;  see  Cook 

348:  Michael  v.  Mace,   137  111.   494;  v.  Wood,  24  111.  295;  Smith  v.  Wil- 

Wright  v.  Griffey,  146  111.  394.  s(m,  26  111.  186. 

'^  Greenleaf  V.  Roe,  17  111.  474;  see  ^  Schroer    v.  Wessell,  89   III.    113; 

Bounnanv.  Wood,  41  111.  203;  Oetger  TJiielman  v.  Burg,  73  111.  293;    Men- 

V.  Ross,  36  111.  335;  Schroer  v.  Wes-  dell  v.  Kimball,  85  III.  582;  Schultz 

V.  Meiselbar,  144  111.  26. 


800  NEW   TEIALS. 

any  error  of  law  apparent  on  the  record.'  The  admission  of 
counter  affidavits  upon  a  motion  to  set  aside  a  default  is  im- 
proper.^ 

See  Judgment  hy  Default,  page  821,  ^os^. 

'  Schmidt  v.  Thomas,  33  111.  App.  Scrafield  v.  Sheeler,  18  Bradw.  507; 

109;  KnoxY.  Bank,  57  111.  330.  Phillip  v.  Blagge,  3  Johns.  141;  Han- 

••'  Mfg.  Co.  V.  Thomas,  17   Bradw.  ford  v.  McNair,  2  Wend.  286;  City 

235;  Wendell  v.  Kimball,  85  111.  582;  v.  ^tfeoji,  43  111.  App.  417. 


CHAPTER  XXXIY. 


EVIDENCE. 


The  mode  of  procuring  the  evidence  that  may  be  used  in  the 
trial  of  a  cause,  is  a  subject  deserving  attention  in  a  work  on 
practice.  For  this  purpose,  the  various  kinds  of  evidence  may 
be  considered  under  these  three  heads,  viz.:  Documentary  evi- 
dence;  Oral  testimony  of  witnesses;  and  Depositions. 

Documentary  evidence. — If  documents,  such  as  statutes, 
public  or  private,  records  of  any  courts,  judgments,  etc.,  are 
required  in  the  course  of  a  trial,  the  party  needing  them  must 
procure  the  originals,  if  necessary,  at  their  place  of  deposit,  or 
copies,  when  they  are  admissible,  duly  authenticated  according 
to  the  laws  of  evidence  in  the  various  cases. 

If  deeds  or  other  writings,  or  books  of  account,  or  private 
papers  of  any  sort,  are  required,  the  party,  if  they  are  con- 
trolled by  his  adversary,  must  give  him,  his  agent  or  attorney, 
written  notice  to  produce  them  at  the  trial.  There  is  no  par- 
ticular form  of  this  notice;  but  a  copy  of  it  should  be  kept, 
attested  to  be  a  true  one  by  the  person  who  delivers  the  orig- 
inal. If  the  party  who  has  an  instrument  required  as  evi- 
dence does  not  produce  it,  the  other,  upon  proving  service  of 
the  notice,  will  be  permitted  to  prove  the  contents  of  the  in- 
strument by  a  copy,  or  other  secondary  evidence,  in  the  same 
manner  as  if  it  had  been  destroyed  or  lost.'  The  notice  should 
be  served  seasonably,  in  order  to  give  the  party  reasonable 
time  to  produce  the  original. 

If  the  instrument  is  produced,  the  party  giving  the  notice 
to  produce  it  may  introduce  it  in  evidence   or  not,  as  he  may 

'  Starr  &  Curtis  1080;   Rev.    Stat.  v.  Ze?nans%,  9  Bradw.  479;  Morgan 

(1893)    717;     Rev.    Stat.   (1895)    765;  v.  CorZies,  81  111.  72;  J5anA;  v.  i^erris, 

Prettyman  v.  Walstoii,  34  III.   190;  118  111.   465;  Pynchon  v.   Day,   18 

Bank  v.  Mansfield.  48  lU.  494;  Field  Bradw.  147. 

51  (801) 


802  EVIDENCE. 

choose.'  But  if  introduced,  its  execution  must  be  proved,  in 
like  manner  as  if  no  notice  had  been  given,  etc."  If,  however, 
the  party  who  produces  the  instrument  under  the  notice  is  a 
party  to  it,  and  claims  a  beneficial  interest  under  it,  the  party 
calling  for  the  instrument  need  not  prove  its  execution.^ 
And  whether  the  party  producing  it,  on  notice,  claims  a  bene- 
ficial interest  under  it  or  not,  its  genuineness  need  not  be 
proved." 

Public  records  are  not  within  the  rule  in  regard  to  the  pro- 
duction of  paper  evidence  under  the  control  of  the  opposite 
party.  Courts  have  the  power  to  compel  the  custodians  of 
records  and  public  documents  to  produce  them;  but  where  the 
exercise  of  this  power  is  not  necessary — as  where  certified 
copies  could  be  obtained  and  used — a  court  may  properly  re- 
fuse to  require  the  production  of  the  originals.'  The  record 
may  be  properly  used  instead  .of  a  copy  when  the  case  in 
which  it  is  offered  is  being  tried  in  the  same  court  which  made 
the   record.* 

The  notice  to  the  opposite  party  to  produce  a  written  in- 
strument may  be  in  the  following  form : 

No.  3S5.    Notice  to  produce  written  instrument  on  trial. 

In  the Court. 

A.  B.  ) 
vs.     y  Covenant. 

CD.) 
To  the  above  named  C.  D.  defendant : 

You  will  please  produce,  on  the  trial  of  this  cause,  a  certain  (here  describe 
the  instrument  with  such  particularity  as  to  apprise  theparty  of  what  is 
required.)  Otherwise  the  plaintiff  will  offer  secondary  evidence  of  the  con- 
tents of  the  said  instrument. 

{Date.) 

E.  F.,  Attorney  for  Plaintiff. 

Where  notice  was  given  the  day  before  a  trial,  to  produce  a 

'  Jordan  v.  Wilkins,  2  Wash.  482.  Jackson  v.  Kingsley,  17  Johns.  158. 

^  Wetherston    v.     Edgington,     2  ^  McPherson  v.  Bathbone,  7  Wend. 

Camp.   94;    Gordon  v.    Secretan,  8  216. 

JEast  548.  '  Seeley  v.  Wells,  53  111.  120. 

^  Pearce  v.  Hooper,  d  Taunt.  62;  «1    Greenl.    Ev.,    Sec.  502;    Gray 

Orr  V.   Marice,  7  E,   C.   L.  R.  382;  v.  Davis,  27   Conn.  447;    Tayler  v. 

Belts   V.    Badger,  12    Johns.    223;  Adams,  115  111.  570. 


EVIDENCE.  803 

paper  Avhich  was  eighty  miles  distant,  in  the  hands  of  another 
person,  it  was  held  that  the  court  could  not  take  judicial  notice 
that  the  paper  could  not  have  been  obtained,  and  exclude 
secondarv  evidence.' 

If  a  person  who  is  not  a  party  to  the  cause  has  in  his  pos- 
session any  written  instrument,  etc.,  which  a  party  desires  to 
use  in  evidence,  a  subpcena  duces  tecum  should  be  served  upon 
him,  commanding  him  to  bring  with  him  and  produce  at 
the  trial  the  instrument  named.  This  suhpcena  may  be  framed 
from  the  common  one,  by  adding  the  command  to  bring  the 
required  instrument. 

Production  of  books  and  writings. — Sec.  9,  Chap.  51,  of 
the  statute,  provides  that  "  the  several  courts  shall  have  power 
in  any  action  pending  before  them,  upon  motion  and  good 
and  sufficient  cause  shown,  and  reasonable  notice  thereof  given, 
to  require  the  parties,  or  either  of  them,  to  produce  books  or 
writings  in  their  possession  or  power  which  contain  evidence 
pertinent  to  the  issue," ' 

This  section  was  designed  to  invest  courts  of  law  with  more 
power  than  they  had  previously''  exercised  in  reference  to  the 
production  of  private  writings  and  to  furnish  to  a  party  liti- 
gant a  speedy  and  summary  mode  by  which  to  obtain  written 
evidence  which  is  in  the  possession  and  control  of  his  adver- 
sary, and  thus  obviate  the  necessity  of  a  bill  of  discovery  seek- 
ing the  same  end.  It  contemplates  the  production  of  evidence 
on  the  trial  of  the  cause,  which  the  part}"-  appl3"ing  therefor  is 
entitled  to  introduce  in  support  of  his  case,  and  which  the  other 
party  withholds.  A  defendant  is  not  required  to  disclose  mat- 
ters of  evidence  relied  upon  in  the  defense,  and  thus  inform  the 
plaintiff  of  his  case  further  than  the  pleadings  show.  Matters 
purely  of  defense  are  the  property  rights  of  the  defendant, 
which  he  may  disclose  or  not,  upon  the  trial. 

Under  the  statute  the  court  has  power  to  compel  the  pro- 
duction of  the  books  of  a  party,  to  be  used  in  evidence  on  the 
trial  by  his  adversary,  upon  proper  showing  that  they  contain 
entries  tending  to  prove  the  issues;  but  the  statute  can  not  be 
construed  as  giving  the  court  power  and  authority  to  take  the 

^Cody  V.  Hough,  20  111.  43;  see  'Rev.  Stat.  (1893)  717;  Rev.  Stat. 
Bushndlv.  Bishop,  28  III.  204.  (1895)  765;  1  Starr  &  Curtis  1080. 


804  EVIDENCE. 

books  and  papers  of  tlie  party  and  impound  them  with  an 
officer  of  the  court  for  inspection  or  examination,  out  of  the 
presence  of  the  court.  The  statute  does  not  give  the  right  to 
compel  the  submission  of  the  books  of  a  party  to  general  in- 
spection or  examination  for  "  fishing  "  purposes,  or  AAith  a  view 
to  find  evidence  to  be  used  in  other  suits  or  prosecutions. 

The  power  of  courts  to  require  the  production  of  papers, 
etc.,  should  be  used  with  circumspection.  The  statute  requires 
"  good  and  sufficient  cause  shown "  as  a  prerequisite.  Such 
cause  should  be  shown  by  affidavit  particularly  pointing  out 
the  necessity  and  propriety  of  the  desired  order  of  the  court 
requiring  the  production  of  such  books,  etc.,  so  that  the  court 
can  see  that  the  applicant  is  really  in  need  of  the  same  to  enable 
him  to  fairly  present  his  cause  of  action  or  his  defense,  and 
that  the  application  is  for  no  improper  or  ulterior  purpose.' 

The  court  will  not  compel  a  party  to  submit  for  inspection 
his  books  of  account  with  other  persons  not  parties  to  the 
suit,  when  it  is  not  made  to  appear  that  they  contain  evidence 
pertinent  to  the  issue.  Where  a  party  is  required  to  produce 
his  books  of  account  for  inspection,  he  will  have  leave  to  seal 
up  and  conceal  all  such  parts  of  them  as,  according  to  his  affi- 
davit, previously  made  and  filed,  do  not  relate  to  the  matters 
in  question.'^ 

Books  of  account  as  evidence. — To  admit  books  of  account 
in  evidence,  the  common  law  requires  that  the  entries  therein 
shall  be  proved  by  the  clerk  or  servant  who  made  them,  if  he 
be  alive  and  can  be  produced;  and  it  is  necessary  that  the  en- 
tries shall  have  been  made  in  the  ordinary  course  of  business 
by  a  person  whose  duty  it  was  to  make  them;  and  that  they 
shall  have  been  made  contemporaneously  with  the  delivery  of 
the  goods,  so  as  to  form  a  part  of  the  res  gestae'^ 

Besides  the  requirement  that  the  entries  should  have  been 
made  in  the  usual  and  regular  course  of  business,  it  is  also 
necessary  that  the  books  should  have  been  fairly  and  honestly 
kept.* 

^Lester  v.  People,  150  lU.  408;  ^Hcnise  v.  Bmfc,  141  111.  290,  and 
Meeth  v.  Briclc  Co.,  48  111.  App.  602;  cases  there  cited;  Chisholm  v.  lea- 
see mgdon  V.  Conley,  141  111.  565.  vian,  160  lU.  111. 

■  Pynclion  v.  Day,  118  111.  9.  *  Ibid. 


EVIDENCE.  805 

The  fact  that  a  book  of  account  contains  some  entries  which 
are  not  original  entries,  forms  no  objection  to  receiving  the 
book  as  evidence  of  other  entries  which  are  regularly  made.' 

Section  3  of  the  act  in  regard  to  Evidence  and  Depositions, 
first  passed  in  1867,  adds  to  and  enlarges,  but  does  not  repeal, 
the  common  law  rule  for  the  admission  of  a  party's  books  of 
account  in  evidence.  This  statute  authorizes  the  party  him- 
self to  testify  to  his  own  books,  which  was  not  allowed  at 
common  law.  It  was  not  the  intention  of  the  statute  to  pro- 
hibit the  introduction  in  evidence  of  books  of  account  kept  by 
a  clerk,  when  such  clerk  is  living  in  the  state  and  is  able  to  tes- 
tify to  the  correctness  of  the  books.  The  statute  merely  per- 
mits an  interested  witness  to  testify  to  all  the  facts  necessary 
to  lay  a  foundation  for  the  admission  of  the  books  of  account. 

The  books  of  original  entries  kept  by  the  clerk  himself  are 
admissible  to  sustain  an  account  composed  of  many  items,  on 
proof  that  some  of  the  articles  were  delivered  at  or  about  the 
time  the  entries  purport  to  have  been  made;  that  the  entries 
are  in  the  handwriting  of  such  party;  that  he  kept  no  clerk  at 
the  time,  and  that  persons  having  dealings  with  him  have  set- 
tled by  such  books  and  found  them  to  be  fair  and  correct. 

Where  the  clerk  who  makes  the  entries  has  no  knowledge 
of  their  correctness,  but  makes  them  as  the  items  are  furnished 
by  another,  it  is  essential  that  the  party  furnishing  the  items 
should  testify  to  their  correctness,  or  that  satisfactory  proof 
thereof  (such  as  the  transactions  are  reasonably  susceptible 
of)  from  other  sources  shall  be  produced.^ 

The  rule  seems  to  be  well  settled,  that  account  books  of  a 
party  are  inadmissible  to  prove  any  matter  collateral  to  the 
issue  of  debt  and  credit  between  the  parties.' 

Where  a  complainant  introduces  in  evidence  the  books  of 
another  for  the  purpose  of  charging  his  estate,  the  former  is 

^  Chisholm    v.   Beaman,    160    111.  Watts.  340;   Winsor  v.    Dillaway,  4 

111.  Met.  (Mass.)  231;  Bustinx.   Rogers, 

« House  V.  Beak.  141  111.  290;  Chis-  11  Cush.  346;  Jones  v.  Brick,  3  Hal- 

holm  Y.  Beaman,  \Q0  1i\.  \1\.  stead    332;    Tenbroke    v.   Johnson, 

^  Batchelder  V.  Sa7iborn,  22  '^.   H.  Coxe  (N.   J.)  334;  Palmer  v.  Gold- 

:  25;  Gage  v.   Mcllvain,    1   Strobh.  smith,  15  111,  App.  544. 
135;    Lonergan    v.    Whitehead,  10 


806  EVIDENCE. 

bound  to  admit  those  items  or  entries  which  make  against 
him  as  well  as  those  which  operate  in  his  favor,  unless  he  can 
show  that  the  items  to  his  prejudice  have  been  improperly  in- 
serted/ 

It  is  true  of  books  of  account,  as  of  all  other  documents  in 
writing,  that  they  furnish  the  best  evidence  of  what  they 
contain,  but  it  is  also  true  that  where  books  of  account  are 
voluminous  and  intricate,  resort  to  the  aid  of  an  expert 
bookkeeper  to  explain  the  meaning  of  entries  and  the  true 
state  of  accounts  to  a  jury,  or  a  court,  may  frequently  be  had.^ 

It  has  been  held  that  a  plaintiff  who  has  made  the  proper 
preliminary  proof  by  his  own  testimony  only,  may  produce 
his  books  of  account  in  evidence  in  an  action  against  the 
administratrix  of  the  debtor.^ 

Oral  testimony  of  witnesses. — The  attendance  of  witnesses 
at  a  trial  is  compelled  by  a  s^ihpoena,  which  is  a  judicial  writ, 
directed  to  the  witnesses,  commanding  them  to  appear  before 
the  court  at  the  time  therein  specified,  to  give  their  evidence 
in  the  cause  named  in  the  writ.  In  Illinois  the  writ  is  gen- 
erally directed  to  the  sheriff.  It  is  usual  for  the  party  desiring 
the  attendance  of  witnesses  to  file  with  the  clerk  of  the  court 
^.prcBcipe,  which  may  be  in  the  following  form : 

No.  386. 

In  the Court. 

A.  B.  ) 
vs.    y  Asmimpsit. 

C.  D.  J  The  clerk  of  the  said  court  will  issue  a  suhpcena  for  J.  K.  and 
L.  M.,  as  witnesses  for  the  j^laintiff,  in  this  cause,  to  appear  on,  etc.;  and 
direct  the  same  to  the  sheriff  of  the  county  of to  execute. 

(Date.)  E.  F.,  Attorney  for  Plaintiff. 

There  is  no  time  limited  within  which  a  suhpcena  must  be 
served.  It  ought,  of  course,  be  served  so  as  to  give  the  wit- 
nesses a  reasonable  time  to  come  to  the  place  specified,  if  they 

'  Hoivell  V.  3Ioores,  127  111.  67,  and  Culver  v.  Marks,  123  Ind.  554;  Bw- 

cases  there  cited.  ton  v.  Driggs,  20  Wall.    125;  Ouar- 

2 1  Greenl.  Evid.,  Sec.  93;  Holling-  antee  Co.  v.  Loan  Ass'n,  57  IIJ.  App. 

worth  V.  State,  111  Ind.  289;  Am.  &  254. 

Eng.  Ency.  of  Law,  Art.  71,  p.   88;  'Ailing  v.  Brazee,  27   HI.   App. 

UnderhiU  on  Evid.,  Sec.  38  (1894);  595. 


EVIDENCE.  807 

reside  at  a  distance;  but  when  they  are  at  hand,  the  subjpcena 
may  be  served  even  after  the  trial  has  commenced. 

If  the  witnesses  reside  in  another  county  than  that  where 
the  court  is  held,  their  fees  for  travel  and  attendance  must  be 
paid  or  tendered  to  them,  on  service  of  the  suhpodiia,  or  they 
can  not  be  proceeded  against  for  not  appearing.' 

If  a  witness  who  has  been  regularly  summoned  (and  whose 
fees  have  been  tendered  to  him,  where  required)  neglects  or 
refuses  to  attend  and  testify,  as  commanded  by  the  writ,  the 
court  will,  on  motion,  order  an  attachment  to  be  issued  against 
him  for  contempt,  and  impose  such  fine  upon  him  as  the  court 
may  deem  just  and  proper,  and  order  him  to  pay  the  costs  of 
such  attachment;  and  such  witness  is  further  liable  to  the 
action  of  the  aggrieved  party,  for  all  damages  by  him  sustained 
by  the  default.  If  a  witness  is  in  custody  at  the  time  of  the 
trial,  the  only  way  of  bringing  him  into  court  to  give  evidence, 
is  by  a  writ  of  habeas  corjnis  ad  testificandum^.  This  writ  can 
be  obtained  only  upon  motion  to  the  court,  and  in  the  English 
practice  the  application  must  be  accompanied  by  an  affidavit 
showing  that  the  witness  is  a  material  one;  but  this  affidavit 
is  not  always  required  in  practice  in  Illinois.  If  the  motion  is 
allowed,  the  writ  is  made  out,  signed  and  directed,  and  deliv- 
ered to  the  officer  in  whose  custody  the  witness  is  held,  who 
will  bring  him  up,  on  being  paid  his  reasonable  charges.' 

For  a  form  of  petition  for  a  writ  of  habeas  corpus  ad  testi- 
fi/iandum.,  see  the  chapter  on  Habeas  Corpus. 

The  affidavit  which  it  is  necessary  to  make  in  order  to  ob- 
tain a  continuance  on  account  of  the  absence  of  a  material 
witness,  is  considered  under  the  head  of  Continuances.' 

The  witnesses  in  a  cause  may,  in  the  discretion  of  the  court, 
be  separated  during  their  examination.* 

DEPOSITIONS  (in    ILLINOIS). 

Cases  in  which  they  may  he  taken. — When  any  person 
whose  testimony  is  required  in  any  suit  at  law,  pending  in  any 

'Bonner  v.PeopZe,  40111.  App.  628.  * Errisman  v.    Errisman,   25  111. 

2  2  Tldd  Pr.  724.  136;  Siaver  v.  Ahhott,  49  lU.  App. 

»  Chapter  XXIV,  ante,  429. 


808  EVIDENCE. 

court  in  the  state,  is  a  non-resident,  or  resides  in  a  different 
county  from  that  in  which  the  court  is  held,  or  is  about  to  de- 
part from  the  state,  or  is  in  custody  on  legal  process,  or  is 
unable  to  attend  court  on  account  of  advanced  age,  sickness,  or 
other  bodily  infirmit}'',  his  deposition  may  be  taken,  in  the 
manner  pointed  out  by  the  statute.' 

Of  witnesses  residing  in  another  county,  infirm  wit- 
nesses, etc. — In  all  cases  where  the  witness  resides  in  a  dif- 
ferent county  from  that  in  which  the  court  is  held,  or  is  about 
to  depart  from  the  state,  or  is  in  custody  on  lethal  process,  or 
is  unable  to  attend  court  on  account  of  advanced  age,  sickness 
or  other  bodily  infirmity,  the  party  desiring  his  testimony, 
upon  filing  a  proper  affidavit,  may  have  his  deposition  taken 
before  any  judge,  justice  of  the  peace,  clerk  of  a  court,  master 
in  chancery,  or  notary  public,  without  a  commission  or  inter- 
rogatories for  such  purpose,  on  giving  the  required  notice  to 
adverse  part}^^ 

The  affidavit  to  be  filed  in  such  case  may  be  as  follows : 

No.  387.    Affidavit  to  he  filed  before  taking  deposition  of  witness  residing 
in  another  county,  etc. 

In  the Court. 

A.  B. ) 

vs.     >  Assuvix>sit. 
C.  D.  )     A.  B.,  the  above  named  plaintiff,  makes  oath  and  says  that  L. 

M.,  who  is  a  material  witness  for  this  affiant,  in  this  cause,  resides  in  the 

county  of ,  in  this  state,  {or  "is  about  to  depart  from  this  state,"  or  "  is 

in  custody  on  legal  process,"  or  "  is  unable  to  attend  the  said  court  on  ac- 
count of  advanced  age,"  etc.,  as  the  case  may  be),  and  that  this  affiant  de- 
sires the  deposition  of  the  said  G.  H. ,  to  be  read  in  evidence  on  the  trial  of 
this  cause.  A.  B. 

Subscribed  and  sworn,  etc. 

Upon  filing  the  affidavit,  a  written  notice  should  be  given 
to  the  adverse  party,  of  the  time  and  place  of  taking  such  dep- 
osition, which  notice  should  be  served  by  copy.  The  statute 
requires  the  notice  to  be  given  ten  days  before  the  time  for 
taking  the  deposition,  "  and  one  day  in  addition  thereto  (Sun- 
days inclusive)  for  every  fifty  miles'  travel  from  the  place  of 

1 1  Starr  &   Curtis'  An.  Stat.  1086;    »Rev.  Stat.  (1895),  768. 
Eev.  Stat.  (1895)  767;  Rev.  Stat. 
(1893)  719. 


EVIDENCE.  809 

holding  the  court  to  the  place  where  such  deposition  is  to  be 
taken."  The  statute  further  provides  that  "  if  the  party  en- 
titled to  notice  and  his  attorney  reside  in  the  county  where 
the  deposition  is  to  be  taken,  five  days'  notice  shall  be  suffi- 
cient.' 

The  notice  mav  be  in  the  following  form : 

No.  388.    Notice  to  take  deposition  of  witness  residing  in  another  county, 

etc. 

In  the Court. 

A.  B.  ) 

vs.     r  Assumpsit. 
C.  D.  ) 

To  the  above  named  C.  D. ,  defendant. 

Take  notice,  that  on,  etc.,  between  the  hours  of a.  m.  and p. 

m.,  at,  etc.,  before  J.  K.,  a  justice  of  the  peace  of  that  county,  or  some 
other  officer  authorized  by  law  to  take  depositions  in  such  cases,  the  plaint- 
iff will  proceed  to  cause  to  be  taken  the  deposition  of  L.  M. ,  residing  in 

the  said  county  of ,  to  be  read  in  evidence  on  the  trial  of  this  cause,  on 

tlie  part  of  the  plaintiff;  at  which  time  and  place  above  mentioned  for  the 
taking  of  such  deposition,  you  can  appear,  and  cross-examine  the  said  wit- 
ness, if  you  shall  see  fit  so  to  do. 

{Date.)  E.  F.,  Attorney  for  Plaintiff. 

At  the  time  and  place  appointed  in  the  notice,  the  party  at 
whose  instance  the  deposition  is  taken,  and  the  adverse  party, 
if  he  sees  fit,  or  their  attorneys,  together  with  the  deponent 
go  before  the  officer  who  is  to  take  the  deposition.  The  de- 
ponent is  then  duly  sworn,  and  the  party  who  caused  him  to 
be  summoned  first  examines  him,  and  the  opposite  partv,  if 
present,  then  cross-examines  him.'  The  questions  of  each 
party,  the  deponent's  answers  to  them,  and  the  objections 
which  either  party  may  make  to  any  questions  or  answers,  are 
written  down  in  their  order;  and  when  the  examination  on 
both  sides  is  concluded,  and  the  result  reduced  to  Avritino-,  and 
read  over  to  the  deponent,  he  signs  his  name  at  the  foot  of 
the  deposition. 

The  general  directions  for  taking  depositions  by  commis- 
sioners are  applicable  in  some  respects  to  cases  of  this  kind. 

>  1  Starr  &  Curtis'  An.  Stat.  1085 ;  =  Leiois  v.  Fish,  40  111.  App.  373. 

Rev.    Stat.    (1893)    719;    Rev.    Stat. 
(1895)  767. 


810  EVIDENCE. 

Any  officer  or  commissioner  may  issue  a  suhpmna,  if  neces- 
sary, to  compel  the  attendance  of  any  witness  whose  deposi- 
tion he  may  be  required  to  take.' 

If  a  party  gives  notice  of  the  taking  of  two  depositions  in 
different  places  on  the  same  day,  so  that  the  opposite  party 
can  not  be  present  to  cross-examine  both  the  witnesses,  he  Taa.y 
elect  which  examination  he  will  attend,  and  the  other  deposi- 
tions will  be  suppressed.^ 

An  appearance  and  cross-examination  of  the  witness  will 
be  deemed  a  waiver  of  objection  to  the  sufficiency  of  the 
notice;  *  and  where  a  party  consents  to  the  taking  of  a  deposi- 
tion, it  may  be  read  in  evidence,  although  no  affidavit  was 
filed,  as  required  by  the  statute.* 

It  is  not  irregular  to  take  the  deposition  of  a  witness  in  a 
county  other  than  that  in  which  he  resides.  He  may  not  be 
bound  to  attend,  but  if  he  does,  it  is  regular.* 

Of  witnesses  residing  in  the  state,  more  than  100  miles 
distant;  non-resident  witnesses;  and  witnesses  In  military 
or  naval  service. — The  statute  (sec.  26  of  the  act  on  Evidence 
and  Depositions)  provides  as  follows :  "  When  the  testimony 
of  any  witness  residing  within  this  state,  more  than  one  hun- 
dred miles  from  the  place  of  holding  the  court,  or  not  residing 
in  this  state,  or  who  is  engaged  in  the  military  or  naval  serv- 
ice of  this  state  or  of  the  United  States,  and  is  out  of  this 
state,  shall  be  necessary  in  any  civil  cause  pending  in  any  court 
of  law  or  equity  in  this  state,  it  shall  be  lawful  for  the  party 
wishing  to  use  the  same,  on  giving  to  the  adverse  party,  or 
his  attorney,  ten  days'  previous  notice,  together  with  a  copy 
of  the  interrogatories  intended  to  be  put  to  such  witness,  to 
sue  out  from  the  proper  clerk's  office  a  dedimus  potestatem  or 
commission,  under  the  seal  of  the  court,  directed  to  any  com-  , 
petent  and  disinterested  person  as  commissioner,  or  to  any 
judge,  master  in  chancery,  notary  public  or  justice  of  the 
peace  of  the  county  or  city  in  which  such  witness  maj'-  reside, 

>  1  Starr  &  Curtis  1090;  Rev.  Stat.  Cook  v.  Ome,  37  111,  186;  Brackett  v. 

(1893)  721;  Rev.  Stat.  (1895)  769,  Nikirk,  20  Bradw.  525. 

'^Hankinson  v.  Lombard,  25   111.  •*  Picard  v.  Safes,  38  111.  40. 

572.  ^Harding  v.  Larkin,  41  111.  413. 

«  County  V.  Bledsoe,  12  111.  267;  see 


EVIDENCE.  811 

or  in  case  it  is  to  take  the  testimony  of  a  person  engaged  in 
such  military  service,  to  any  commissioned  officer  in  the 
military  or  naval  service  of  this  state  or  the  United  States, 
authorizing  and  requiring  him  to  cause  such  witness  to  come 
before  him,  at  such  time  and  place  as  he  may  designate  and 
appoint,  and  faithfully  to  take  his  deposition  upon  all  such  in- 
terrogatories as  may  be  inclosed  with  or  attached  to  said  com- 
mission, both  on  the  part  of  the  plaintiff  and  defendant,  and 
none  others;  and  to  certify  the  same,  when  thus  taken,  to- 
gether with  the  said  commission  and  interrogatories,  into  the 
court  in  which  such  cause  shall  be  pending,  with  the  least 
possible  delay."  ' 

The  statute  must  be  substantially  complied  with,  and  no 
material  deviation  therefrom  will  be  allowed,  unless  by  consent 
or  waiver  of  the  parties  to  the  suit.^ 

The  notices  and  formal  interrogatories  to  be  used  in  such 
cases  may  be  as  follows : 

No.  3S9.     Notice   and  interrogatories  for  taking  deposition  iipon  inter- 
rogatories in  writing. 

In  the court  of  the  county  of ,  in  the  State  of  Illinois. 

A.  B.  ) 

vs.     >  Assumpsit, 
C    D.  ^ 

To  the  above  named  C.  D.,  Defendant. 
Take  notice,  that  on,  etc.,  the  plaintiff  will  sue  out  from  theclerk's  office 
of  the  said  court  a  commission,  pursuant  to  tlie  statute,  to  take  the  depo- 
sition of  L.  M.,  residing  in  the  city  of ,  in  the  county  of and  state 

of ,  to  be  read  in  evidence  on  the  part  of  the  plaintiff,  on  the  trial  of 

this  cause.    The  interrogatories  to  be  propounded  to  the  said  L.  M.  in  this 
behalf,  on  the  part  of  the  plaintiff ,  are  hereto  subjoined;   and  you  can  file 
cross-interrogatories,  and  join  in  sucli  commission,  if  you  shall  see  fit  so 
to  do. 
{Date.)  E.  F.,  Attorney  for  Plaintiff. 

In  the court  of  the  county  of in  the  State  of  Illinois. 

A.  B.  ) 

vs.    >  Assumpsit. 
CD.) 

Interrogatories  to  be  propounded  to  L.  M.,  a  witness  to  be  pro- 

'  1  Starr  &  Curtis,  1086;  Rev.  Stat.  see  County  v.  Bledsoe,   13  III.    267: 

(1895),  767;  Rev.  Stat.  (1893),  719;  see  Ballance  v.  Underhill,  3  Scam.  453; 

Brown  v.  Luehrs,  79  111.  575.  Haioks  v.  Lands,  3  Gilm.  227;  Edel- 

'  Cargan  v.   Anderson,  80  111.  95;  man  v.  Byers,  75  lU.  367. 


812  EVIDENCE. 

duced,  sworn  and  examined  in  this  behalf,  on  the  part  of  the  plaintiff ,  by 
virtue  of  the  commission  to  be  issued  in  pursuance  of  the  foregoing  notice  : 

Interrogatory  1.  What  is  your  name,  age,  occupation,  and  place  of  resi- 
dence? 

Int.  2.  Do  you  know  the  parties  plaintiff  and  defendant  in  this  cause,  or 
either  of  them  ?    If  yea,  how  long  have  you  known  them  respectively  ? 

{Proceed  icith  the  interrogatories — numhering  them  consecutively — touch- 
ing the  matters  desired  to  he  proved.) 

Lastly.  Do  you  know  of  any  other  matter  or  thing,  of  benefit  or  ad- 
vantage to  the  plaintiff,  touching  the  matters  in  conu-oversy  in  this  cauSe, 
in  addition  to  what  you  have  already  stated?  If  yea,  state  the  same  as 
fully  as  if  thereto  particularly  interrogated. 

E.  F.,  Attorney  for  Plaintiff. 

It  is  usual  to  name  the  commissioner  in  the  notice;  but  in 
the  case  of  Cole  v.  Choiiteau,  18  111.  439,  the  court  said  :  "  The 
statute  here  does  not  authorize  the  party  to  appoint  the  com- 
missioner, consequently  he  could  not  give  his  name  in  the 
notice  to  sue  out  the  dedhnuft.  It  is  not  required  by  the  stat- 
ute, for  the  clerk  might  appoint  some  other  than  the  one  so 
nominated  in  the  notice."  A  commission  not  directed  to  any 
particular  person,  but  directed  generally  to  any  judge,  master 
in  chancery,  notary  public,  etc.,  of  the  county  in  which  the 
witness  resides,  has  been  held  to  be  sufficient.' 

In  a  suit  against  two  joint-debtors,  a  notice  to  one  of  them, 
of  the  issuing  of  a  commission  to  take  depositions,  is  insuffi- 
cient, and  the  deposition  can  not  be  used  against  him  who  was 
not  served  with  notice.* 

The  usual  mode  of  serving  a  notice  of  suing  out  a  commis- 
sion, is  to  deliver  a  copy  of  the  notice  and  interrogatories  to 
the  opposite  party,  or  his  attorney,  who  will  generally  acknowl- 
edge the  receipt  of  the  same  on  the  back  of  the  original.  If 
this  is  not  done,  an  affidavit  of  service  should  be  attached. 
The  service  must  be  at  least  ten  days  before  the  issuing  of  the 
commission.' 

Of  non-resident  witnesses,  npon  oral  interrogatories.— 
The  statute  provides,  in  this  regard,  as  follows  :  "  When  a 
party  shall  desire  to  take  the  evidence  of  a  non-resident  wit- 

1  Brackett  v.   Nikirk,  20  111.  App.  ^  McConnel   v.   Stetiniiis,  2  Gilm. 

525.  707. 

2  Cargan  v.  Anderson,  30  111.  95. 


EVIDENCE.  813 

ness,  to  be  used  in  any  cause  pending  in  this  state,  the  party 
desiring  the  same,  or,  where  notice  shall  have  been  given  that 
a  commission  to  take  the  testimony  of  a  non-resident  witness 
will  be  applied  for,  the  opposite  party,  upon  giving  the  other 
three  days'  notice  in  writing  of  his  election  so  to  do,  may  have 
a  commission,  directed  in  the  same  manner  as  provided  in  sec- 
tion 26  of  this  act,  to  take  such  evidence,  upon  interrogatories 
tcr  be  propounded  to  the  witness  orally;  upon  the  taking  of 
which  each  party  may  appear  before  the  commissioner,  in  per- 
son or  by  attorney,  and  interrogate  the  witness.  The  party 
desiring  such  testimony  shall  give  to  the  other  the  following 
notice  of  the  time  and  place  of  taking  the  same,  to  wit,  ten 
days,  and  one  day  in  addition  thereto  (Sundays  included)  for 
every  one  hundred  miles'  travel  from  the  place  of  holding  the 
court  to  the  place  where  such  deposition  is  to  be  taken." ' 

The  party  who  gives  notice  that  he  will  sue  out  a  dedimus 
to  take  the  testimony  of  a  witness  upon  written  interroga- 
tories, after  receiving  notice  that  the  party  to  whom  the  notice 
was  given  has  elected  to  take  the  deposition  upon  oral  inter- 
rogatories, should  reply  with  a  notice  of  the  time  and  place 
where  such  deposition  will  be  taken  upon  oral  interrogatories 
in  accordance  with  the  statute;  he  is  the  party  desiring  the 
testimony  and  should  give  notice  of  the  time  and  place  for 
taking  the  same.' 

A  motion  to  suppress  a  deposition  taken  upon  written  inter- 
rogatories should  be  sustained,  where  subsequent  to  the  giving 
of  the  notice  of  the  intention  to  take  the  same,  the  oppo- 
site part}'  gave  notice  of  his  election  to  take  it  upon  oral  inter- 
rogatories. Sec.  28,  Chap.  51,  R.  S.,  does  not  contemplate  the 
issuing  of  two  commissions,  one  to  take  the  testimony  upon 
written,  and  the  other  upon  oral  interrogatories.^ 

Notice  by  mail,  or  by  advertisement. — With  respect  to 
notice  where  personal  service  can  not  be  had,  the  statute  pro- 
vides as  follows :  "  When  the  deposition  of  any  Avitness  is 
desired  to  be  taken  under  the  provisions  of  this  act,  and  the 
adverse  party  is  not  a  resident  of  the  county  in  which  the  suit 

>  Rev.  Stat.  (1893),  720;  Rev.  Stat  ^  Lewis  v.  Fish,  40  111.  App.  372. 

(1895),  768;  1  Stan*  &  Curtis  1087.  ^  Lewis  v.  Fish,  40  111.  App.  373. 


814  EVIDENCE. 

is  pending,  or  is  in  default,  and  no  attorney  has  appeared  for 
him  in  such  cause,  upon  filing  an  affidavit  of  such  fact,  and 
stating  the  place  of  residence  of  such  adverse  party,  if  known, 
or  that  upon  diligent  inquiry  his  place  of  residence  can  not  be 
ascertained,  the  notice  required  by  this  act  may  be  given  by 
sending  a  copy  thereof  by  mail,  postage  paid,  addressed  to  such 
party  at  his  place  of  residence,  if  known,  or  if  not  know^n,  by 
posting  a  copy  of  such  notice  at  the  door  of  the  court 
house  w^iere  the  suit  is  pending,  or  publishing  the  same  in  the 
nearest  newspaper,  and  when  interrogatories  are  required,  fil- 
ing copy  thereof  with  the  clerk  of  the  court  ten  days  before 
the  time  of  suing  out  such  commission."  ' 

Instructions,  etc.,  for  taking  depositions. — Where  a  depo- 
sition is  to  be  taken  under  a  commission,  the  following  instruc- 
tions and  forms  for  the  taking,  certifying  and  returning  of 
depositions,  according  to  the  law^s  of  Illinois,  may  be  inclosed 
with  the  commission : 

No.  390.     Caption  of  the  deposition. 

The  deposition  of  L.  M.,  of  the  city  of  ,  in  the  county  of  and 

state  of ,  a  witness  of  lawful  age,  produced,  sworn,  and  examined  upon 

his  oath,  on,  etc.,  at  my  office  in,  etc.,  by  me,  J.  K.,  a  commissioner  duly 
appointed  by  the  annexed  commission,  issued  out  of  the  clerk's  office  of  the 

court  of  the  county  of  ,  in  the  State  of  Illinois,  under  the  seal  of 

tihe  said  court,  and  to  me  dii'ected,  as  such  commissioner,  for  the  examina- 
tion of  the  said  L.  M. ,  a  witness  in  a  certain  suit  now  pending  in  the  said 
court,  wherein  A.  B.  is  plaintiff,  and  C.  D.  is  defendant,  on  behalf  of  the 
plaintiff,  as  well  upon  the  interrogatories  of  the  plauit iff  as  upon  the  cross- 
interrogatories  of  the  defendant,  which  were  attached  to  the  said  commis- 
sion, and  upon  none  others.  The  said  L.  M.,  being  first  duly  sworn  by  me, 
as  a  witness  in  the  said  cause,  before  the  commencement  of  his  examina- 
tion, to  testify  the  truth  as  well  on  the  part  of  the  plaintiff  as  the  defend- 
ant, in  relation  to  the  matters  in  conti'oversy  between  the  said  parties,  so 
far  as  he  should  be  interrogated,  testified  as  follows  : 

Interrogatory  1.     {Here  insert  the  first  interrogatoi'y .) 

Answer.  {Here  insert  the  ansioer — and  so  on  successively,  in  the  order 
in  which  the  interrogatories  may  be  propounded  and  answered.  Then 
folloiv :) 

Cross-interrogatories  on  the  part  of  the  defendant,  and  answers  thereto 

1  Rev.  Stat.  (1893),  720;  Rev.  Stat.  (1895),  768;  1  Starr  &  Curtis  1087. 


EVIDENCE.  815 

by  the  said  L.  M.    (Here  urrite  dcnvn  tlie  cross-interrogatories  and  answers 
successively. ) 

(After  the  deposition  is  taken,  the  interrogatories  and  answers  should  be  read  over  to  the  witness, 
and  if  he  assents  to  the  truth  of  the  answers  as  written  down,  he  will  then  sign  his  name  at  the  bottom 
of  the  deposition,  and  swear  to  the  truth  of  it  before  the  commissioner.  This  oath  is  in  addition  to 
the  preliminary  oath,  which  is  administered  before  the  commencement  of  his  examination. 

The  commissioner  should  then  certify  as  to  the  time,  place  and  manner  of  taking  the  deposition, 
as  follows:) 

No.  391.     Certificate. 

I,  the  above  named  J.  K.,  of,  etc.,  a  commissioner  duly  appointed  by  the 
annexed  commission  to  take  the  deposition  of  the  said  L.  M.,  the  witness 
whose  name  is  subscribed  to  the  foregoing  deposition,  do  certify,  that  before 
the  commencement  of  his  examination  as  a  witness  in  the  said  suit  between 
the  said  A.  B.,  plaintiff,  and  the  said  C.  D.,  defendant,  he,  the  said  L.  M., 
was  duly  sworn  by  me,  to  testify  the  truth  in  relation  to  the  matters  in 
controversy  between  the  said  parties,  so  far  as  he,  the  said  L.  M.,  should 
be  interrogated  concerning  the  same;  that  the  said  deposition  was  taken  at 
my  office,  in,  etc.,  on,  etc.;  and  that  after  the  said  deposition  was  taken  by 
me,  as  aforesaid,  the  interrogatories  and  cross-interrogatories,  and  the 
answers  thereto,  as  written  down,  were  read  over  to  the  said  L.  M. ;  and 
that  thereupon  the  said  deposition  was  signed  and  sworn  to  by  the  said  L. 
M.,  before  me,  at  the  place  and  on  the  day  last  aforesaid. 

J.  K.,  Commissioner. 

(The  foregoing  certificate  should  be  at  the  foot  of  the  deposition,  immediately  following  the  signa- 
ture of  the  witness. 

The  commissioner  should  then  fold  np  the  deposition,  together  with  the  commission  and  interrog 
atories,  and  all  exhibits,  if  any,  properly  marked  or  lettered,,  as  "  exhibit  A,"  "exhibit  B."  etc.,  and 
inclose  the  whole  in  a  suitable  envelope:  and  then  seal  up  the  same  securely  with  three  seals,  writing 
his  name  across  the  middle  seal.  The  commissioner  will  also  indorse  the  names  of  the  parties  to  the 
suit  across  one  end  of  the  package,  according  to  the  proper  title  of  the  suit,  and  direct  tht'  package  to 
the  clerk  who  may  have  issued  the  commission,  and  transmit  the  same  by  mail  to  the  proper  post- 
office.  No  party,  attorney  or  agent,  or  any  person  at  all  interested  in  the  event  of  the  suit,  is  per- 
mitted to  dictate,  write  or  draw  up  any  part  of  the  deposition,  or— when  taken  upon  written  inter- 
rogatories—to  be  present  during  the  taking  of  the  same.' 

One  caption  will  answer  for  the  deposition  of  several  witnesses,  where  they  are  all  taken  at  the 
same  time  and  place,  to  be  read  in  the  same  suit,  by  modifying  the  form  here  given— for  instance  .is 
follows:) 

The  depositions  of  E.  F.,  G.  H.  and  L.  M.,  of,  etc.,  witnesses  of  lawful 
age.  produced,  sworn  and  examined  on  their  respective  oaths,  etc.  (In  the 
latter  part  of  the  caption  say:)  The  said  E.  F.,  G.  H.  and  L.  M.,  being  first 
duly  sworn  by  me,  as  witnesses  in  the  said  cause,  etc.  (Then,  at  the  com- 
mencement of  each  deposition,  say:)  InteiTogatories  propounded  to  the  said 
E.  F.,  a  witness  produced  and  sworn  as  aforesaid,  on  the  part  of  the  jiluint- 
iff,  and  the  answers  of  the  said  E.  F.  thereto,  as  follows: 

Interrogatory  1.     (Here  insert  the  interrogatory.) 

Answer.     (Here  insert  the  answer.) 

(And  so  on  successively  with  all  the  interrogatories  to  be  propounded  to  that  witness.  Then  insert 
the  cross-interrogatories  as  directed.  The  deposition  should  then  be  re.ad  over  to  the  witness  and 
signed  and  sworn  to  by  him  before  the  next  witness  is  examined.  Then  proceed  with  the  second  and 
third  witnesses,  in  like  manner,  to  the  end. 

■Rev.  Stat.   (1893)  721;  Rev.  Stat.  (1895)768;  1  Starr  &  Curtis  1089. 


816  EVIDENCE. 

One  certifioate  as  to  the  time,  place  and  manner  of  taking  such  depositions,  and  that  thev  were 
signed  and  sworn  to  by  such  witnesses,  respectively,  will  be  sufficient,  provided  due  care  is  taken  to 
insert  the  names  of  all  the  witnesses,  and  the  certificate  is  in  other  respects  in  conformity  with  the 
form  given  in  the  first  instance.) 

The  statute  has  fixed  no  form  for  either  the  caption  or  cer- 
tificate to  be  attached  to  depositions.  If  they  are  taken  and 
certified  in  substantial  conformity  with  the  requirements  of 
the  statute,  they  will  not  be  suppressed  on  merely  technical 
objections.' 

When  the  deposition  is  taken  by  a  justice  of  the  peace, 
notary  public,  or  other  officer,  as  such,  he  should  so  describe 
himself  in  the  caption  and  certificate,  and  not  as  commissioner; 
and  if  so  taken  in  another  state,  his  return  must  be  accom- 
panied by  a  certificate  of  his  ofiicial  character,  under  the 
great  seal  of  the  state,  or  under  the  seal  of  the  proper  court  of 
record  of  the  county  or  cit}'-  where  the  deposition  is  taken,^ 

Interrogatories  accompanying  a  commission  to  take  a  depo- 
sition need  not  be  copied  into  the  deposition.  It  is  sufficient 
if  they  were  propounded  to  the  witness,  answered  by  him,  and 
so  referred  to  that  the  court  can  see  the  deposition  was  fairly 
taken.* 

A  deposition  will  be  sufficient  if  it  shows  that  the  witnesses 
were  sworn,  although  it  may  not  appear  in  the  right  place,  or 
be  set  out  in  the  certificate,  which  ought  to  come  at  the  close 
of  the  deposition.* 

The  indorsement  of  the  names  of  the  parties  litigant  is 
directed  by  the  statute,  on  the  return  of  depositions;  but 
an  omission  thereof,  unless  injury  arises  from  the  neglect, 
will  not  be  fatal.'  It  seems  that  where  the  names  of  partner- 
ships are  indorsed  as  parties  litigant,  it  is  a  substantial  compli- 
ance with  the  statute.* 

It  is  a  valid  objection  to  a  deposition,  that  it  has  been  dic- 

1  Behrensvieyer  v.  Kreitz,  135  111.  Brown  v,  LueJirs,  79  111.  575;  Ken- 
591  _  dall  V.  Limberg,  69  111.  356. 

2  Rev.  Stat.  (1893)  720;  Rev.  Stat.  ^  Hawks  v.  Lands,  3  Gilm.  227. 
(1895)  768;    1   Starr  &  Curtis  1088;  *  County  v.  Bledsoe,  12111.  2G'7;  see 
see   Wheeler   v.  Shields,   2    Scam.  R.  R.   Co.  v.    Cowles,    32  111.  116; 
348;  McCoy  v.  People,  71   111.   Ill;  Kendall  v.  Limherg,  69  111.  356. 
Edleman  v.  Bj/ers,  75  111.  367;  Eisen-  ^Cole  v.  Choteau,  18  111.  439;  see 
meyer  v.   Sauter,   77  111.  515;    see  R.  R.  Co.  v.  Coppinger,  66  111,  510. 

6  Forsyth  v.  Baxter,  2  Scam.  9. 


EVIDENCE.  817 

tatecl  or  drawn  up  by  an  attorney  in  the  cause;  but  tlie  objec- 
tion must  be  supported  b}'-  proof  of  the  fact.' 

Where  a  dedimus  was  directed  to  a  commissioner  to  take  the 
testimony  of  "  Seymour  Rank,"  and  the  deposition  returned 
was  that  of  "  Seigmond  Rank,"  the  variance  was  held  to  be 
fatal. ^ 

Depositions  taken  in  one  suit  may  be  used  in  another,  be- 
tween the  same  parties,  where  the  same  matters  are  in  con- 
troversy.^ 

A  party  may  cause  a  second  deposition  of  a  witness  to  be 
taken,  without  leave  for  that  purpose;  but  it  is  discretionary 
with  the  court  to  say  which  shall  be  read.* 

Where  a  deposition  has  been  lost,  and  the  witness  is  dead  at 
4    the  time  of  the  trial,  the  contents  of  the  deposition  may  be 
proved,  like  those  of  any  other  lost  paper.^ 

It  is  no  objection  that  .a  witness,  who  is  a  party  to  the  suit, 
wrote  his  own  answers  to  the  interrogatories  in  his  deposition." 

It  is  no  objection  that  a  deposition  was  taken  by  a  type- 
writer when  the  commissioner  certifies  that  it  was  taken  by 
him.'  Where  a  commission  issued  from  this  country  in  the 
English  language  to  a  foreign  C(juntry  is  returned  with  the 
answers  of  the  witness  written  in  the  lang-uao-e  thereof,  the 
same  may  be  translated,  and  the  translation  given  in  evidence, 
but  such  translation  may  be  shown  to  be  erroneous.^ 

On  an  objection  to  a  deposition,  on  the  ground  that  it  came 
to  the  clerk  unsealed,  it  will  be  presumed  that  the  officer  who 
took  the  deposition  did  his  duty,  and  sent  the  same  properly 
sealed,  and  the  burden  of  proof  is  on  the  objector.'  AVhere 
the  deposition  of  a  witness  taken  by  the  plaintiff  is  read   in 

'  King  v.  Dale,  1  Scam.  514;  see  1       Cookson  v.  Richardson,  69  111.  137; 


StaiT    &    Curtis    1089;     Rev.    Stat 
(1893),  721;  Rev.  Stat.  (1895),  769. 

'^Scholesv,  Ackerland,  13  III.  650 
see  McCoy  v.  People,  71  111.  Ill 
Trans.  Co.  v.  Leysor,  89  III.  43. 

» McConnel  v.  Smith,  27  111.  232 
3fcConnel  v.  Smith,  23  111.  611 
Wade  V.  King,  19  111.  300;  Dajle  v 
Wiley,  1o  111.  old;  Goodrich  v.  Han-      111. 

son,  33  111.  498;   3  Greenl.   Ev.   326;  » In  re  Noble,  124  111.  266. 

52 


Jarret  v.  Phillips,  90  111.  237;  Pratt 
V.  Kendig,  128  111.  293, 

*  Beach  v.  Schmidz,  20  111.  185. 
6  Aidger  v.  Smith,  34  111.  534, 

*  Wood  V.  Shaiv,  48  111.  273. 
'' Behrensmeyer  v.  Kreitz,  135  lU. 

591. 
8  Christman  v.  Ray,   42  111.   App. 


818  EVIDENCE. 

evidence  by  the  defendant,  the  person  whose  deposition  has 
been  so  taken  and  read  will  not  be  the  witness  of  the  plaintiff, 
who  will  have  the  same  right  to  contradict  such  witness  as 
any  other  witness  introduced  by  the  defendant.' 

Where  a  deposition  is  taken  by  a  party  incompetent  to 
testify  on  the  ground  of  interest^  and  an  objection  is  interposed 
to  the  competency  which  is  noted  by  the  officer  taking  the  dep- 
osition, and  the  party  objecting  cross-examines  the  witness, 
and  on  his  motion  the  deposition  is  excluded  by  the  court,  the 
other  party  will  not  have  the  right  to  read,  on  the  hearing,  the 
cross-examination.  By  cross-examining  an  incompetent  wit- 
ness before  the  court  passes  on  an  objection  to  the  competency, 
the  party  so  cross-examined  does  not  make  the  matters  drawn 
out  by  his  examination  competent  evidence  against  him,^ 

Exceptions  or  objections  to. — Objections  to  a  deposition, 
and  motions  to  suppress  the  same,  may  be  made  after  leave 
has  been  obtained  to  open  the  same  before  the  trial  is  entered 
upon.^  All  exceptions  to  depositions,  which  go  to  the  form 
of  the  same,  or  to  the  incompetency  of  witnesses,  must  be  taken 
or  made  before  the  case  is  called  for  trial  and  submitted  to  the 
jury.  If  formal  objections  exist,  they  should  be  made  and  set- 
tled on  exceptions  before  the  trial,  so  that  if  they  are  sustained 
the  party  in  whose  favor  they  were  taken  may  procure  the 
evidence  of  the  witness  on  the  trial  or  retake  his  deposition.* 
Objection  to  their  substance^  however,  may  be  made  on  the 
trial.' 

Before  the  objection  that  a  deposition  in  a  given  cause  does 
not  contain  the  best  evidence  of  the  matters  referred  to  can 
be  considered,  it  is  essential,  before  trial,  to  move  to  suppress 
the  same."     If   leading   questions   are  propounded   to  a  wit- 

'  Bloomington  v.  Osterle,   139  111.  McKinley,    64  111.    338;  Kassing  v. 

120.                     ,  Mortimer,    80    111.  602;    Stoioell  v. 

■^Achilles  v.  Achilles,  137  111.  589.  Moore,  89  111.  563;  M.  D.  Co.  v.  Ley- 

^  Everinghainy.  Lord,\^\\\.  A}^^.  .sor,  89  111.  45;  TFarren   v.   Warren, 

565;  Corgan  v.  Anderson,  30  111.  95.  105  111.  568;  Carter  v.  Carter,  37  111. 

*  Winslow  V .  Newlan,  45  111.   145;  App.  219;  Sheldon  v.  Burry,  39  111. 

Frinkv.  McClung,AiG\lm..^Q^;Kim-  App.    154;  Dunbar  v.   Gregg,  44  111. 

ball  V.  Cooh,l  Gilm.  423;  Thomas  v.  App.  527. 

Dunaway,  30  111.  373;   R.  R.  Co.  v.  *  Frink  v.  McClung,  4  Gilm.  569. 

Baddeley,  54  lU.  19;  R.   R.  Co.  v.  ^  Carier  v.  Carter,   37   111.   App 


EVIDENCE.  819. 

ness  whose  deposition  is  being  taken  upon  oral  interrogatories, 
an  objection  to  the  form  of  a  question  must  be  made  and  noted 
at  the  time,  or  such  objection  will  be  waived.  If,  however, 
the  party  against  whom  the  deposition  is  intended  to  be  used? 
is  not  present  when  it  is  taken,  the  rule  will  not  apply.' 

A  party  can  not,  it  seems,  have  the  deposition  taken  for  his 
opponent  suppressed  for  want  of  full  answers  by  the  witness 
to  the  latter's  interrogatories.'  Eut  by  the  statute,  the  court 
may  allow  another  commission  to  issue,  if  it  appears  that  the 
Avitness  has  not  given  full  or  proper  answers,  or  that  a  further 
examination  ought  to  be  allowed  to  either  party .^ 

A  motion  to  suppress  a  deposition  upon  a  specific  ground  is 
a  waiver  of  all  other  grounds  of  objection." 

A  motion  to  suppress  a  deposition  on  the  ground  it  was  not 
properly  sealed  and  directed,  comes  too  late  after  a  general 
order  for  the  opening  of  all  depositions,  unless  some  good 
reason  is  given  for  the  delay.  The  court  upon  objection 
taken  before  such  order  is  made,  can  then  decide  the  motion 
by  inspection,  instead  of  acting  upon  affidavits,' 

It  is  not  sufficient  to  object  to  depositions  before  the  trial; 
objections  should  be  made  and  exceptions  preserved  when  they 
are  offered  in  evidence.' 

The  rule  seems  to  be  well  recognized  that  after  a  deposition 
taken  in  a  cause  has  been  read  without  objections  upon  one 
trial,  it  can  not  afterwards  be  objected  to  on  account  of  any 
defect  existing  at  the  time  it  was  so  used.^ 

Where  portions  of  an  answer  in  a  deposition  are  improper, 
the  same  should  be  eliminated  before  the  deposition  is  read  to 
the  jury.* 

219;  Dunbar  v.  Gregg,  44  111.  App.  ^In  re  Noble,  124  111.  266. 

527.  °  Shedd  v.  Dalzell,  30  111.  App.  356; 

'  Goodrich  v.  Hanson,  33  111.  499;  Gardner  v.  Haynie,  42  111.  291. 
see    Cooke    v.    Ome,    37    111.    186;  '^mjis  v.  iJe^'c/i,  7  Wheat.  453; 

Lockimod  v.  Mills,  39  III.  602;    Phy  Spence  v.  Synith,  18  N.  H.  587;  Hill 

V.  Clark,  35  111.  377.  v.  Meyers,  43  Pa.  St.  170;  McMillen 

2  Cole  V.  Choteau,  18  111.  439.  v.  E.  R.  Co.,  56  Iowa  421;   Woodruff 

=  Rev.  Stat.  (1893)721;  Rev.  Stat.  v.  Monroe,  33  Md.  146;  Brackett  V. 

(1895)  769;  1  Starr  &  Curtis  1089.  Nikirk,  20  111.  App.  525;  see  Bush  v. 

*Bartee    v.    Jones,    33    Ala.    84,  Stanley,  122  III  iOQ, 
SaUmarch  v.  Boiver,   34  Ala.  613;  ^R.  R.  Co.  v.  Southworth,    32  lU. 

Brackett  v.  Aikirk,  20  111.  App.  525.  App.  307, 


CHAPTER  XXXY. 

JUDGMENTS. 

A  judgment  in  law  is  a  solemn  determination  of  a  question, 
declared  by  a  court.  The  language  used  in  a  judgment  is, 
that  "it  is  considered  by  the  court,"  etc.,  the  theory  being 
that  the  function  of  the  court  is  not  to  give  its  own  decis- 
ion, but  to  ascertain  and  pronounce  the  decision  of  the  law. 
To  give  validity  and  full  force  to  a  judgment,  the  court  which 
renders  it  must  have  competent  jurisdiction  over  the  subject- 
matter  concerning  which  it  adjudicates,  and  the  particular 
person  or  thing  on  whom  or  concerning  which  it  passes  judg- 
ment;' the  cause  must  have  been  properly  brought  before  the 
court;  and  the  trial  must  have  proceeded  with  due  regard  to 
all  those  forms  which  are  established  by  law,  to  prevent  sur- 
prise, neglect,  or  error. 

Judgments  are  either  interlocutory  ovjinal.  The  former  are 
such  as  are  given  during  the  progress  of  a  suit,  upon  some  plea, 
proceeding,  or  default,  which  is  only  intermediate,  and  does 
not  finally  determine  or  complete  the  suit — as,  in  the  action  of 
account,  that  the  defendant  account;  or  where  there  is  a  de- 
fault, and  a  writ  of  inquiry  awarded,  etc.  The  latter  are  such 
as  at  once  put  an  end  to  the  action.  They  are  the  sentence  of 
the  law,  given  by  the  court — as  that  the  plaintiff  recover  his 
damages  and  costs;  or,  if  for  the  defendant,  that  the  plaintiff 
take  nothing  by  his  writ,  and  that  the  defendant  recover  his 
costs,  and  sometimes  also  his  debt  or  damages,  where  he  has 
pleaded  a  set-off.  A  judgment  is  said  to  be  final  when  it 
terminates  the  litigation  between  the  parties  on  the  merits  of 
the  case.^ 

Judgments  may  also  be  divided  into   four  kinds :    First, 

1  Dunham  v.  Dunham,  57  lU.  App.  ^R.  R.  Co.  v.  Chicago,  148  111.  141; 

475.  Glade  v.  Brick  Co.,  158  111.  39. 

(820) 


JUDGMENTS.  821 

where  both  the  facts  and  the  law  arising  thereon  are  admitted 
by  the  defendant,  as  charged  in  the  phiintiff's  declaration;  as 
in  cases  of  judgment  by  confession  or  default.  Second,  where 
the  plaintiff  is  convinced  that  the  facts,  or  the  law,  or  both, 
are  not  sufficient  to  support  his  action,  and  he  therefore  aban- 
dons his  suit;  as  in  cases  of  7ionsuit  or  retraxit.  Thii'd,  where 
the  facts  are  confessed  by  the  parties,  and  the  law  determined 
by  the  court;  as  in  cases  of  judgment  w^^on  demurrer,  or  an 
agreed  statement  of  facts.  Fourth,  where  the  law  is  admitted 
by  the  parties,  and  the  facts  disputed;  as  in  the  case  of  judg- 
ment on  a  verdict/ 

Jiidgmeiit  by  default. — When  the  defendant  fails  to  ap- 
pear and  make  a  proper  defense,  a  judgment  may  be  taken 
against  him  by  default.  Before  doing  so,  however,  the  plaintiff 
should  examine  the  writ,  and  see  that  it  is  in  due  form,"  and 
properly  attested;  and  also  the  return  of  the  sheriff,  to  ascer- 
tain whether  proper  service  has  been  made,  a/ud  whether  the 
return  is  in  due  form.  If  the  return  is  insufficient,  the  court 
will,  on  motion,  permit  the  officer  to  amend  it.' 

Where  too  large  a  judgment  has  been  rendered  against  a 
defendant,  by  default,  (but  less  than  the  amount  claimed  in 
the  declaration,)  he  should  apply  by  motion  to  the  court  ren- 
dering the  judgment,  to  correct  the  mistake.*  After  a  consid- 
erable delay,  it  will  not  be  corrected  on  error.* 

A  judgment  by  default  will  not  be  regular  unless  the  defend- 
ant has  been  ^\\\y  served  with  process.  It  should  appear  from 
the  return  that  the  writ  has  been  served,  and  when,  and  on 
whom,^  and  that  the  service  was  in  due  time.^  While  an  offi- 
cer's return  can  not  be  contradicted  so  as  to  defeat  jurisdic- 
tion, yet  it  maybe  done  to  excuse  a  default.® 

'See  3  Blacks.  Com.,  396;  Howe's  ^See  Pardon  v.  Dwire,  23  111.  572; 

Prac.  265.  Bancroft  v.  Speer,  24  III.  227;   Ogle 

■i  Culver  V.  Pheliis,  130  111.  217.  v.  Coffey,  1  Scam.  239;   Pattison  v. 

^ Moore  v.   Purple,   3  Gilm.  149;  Hood,    3    Scam.    152;    Schmidt   v. 

Montgomery  v.  Brown,  2  Gilm.  581;  Thomas,  33  111.  App.  110. 

People  V.  Harrison,  82  111.  84.  '  Pattison  v.  Hood,  3  Scam.  152. 

4i2ieZz/v.  Barfo/i,  32  111.  App.  528;  ^Scrafieldw.   Sheeler,  IS   Brachv. 

Hall  V.  Bank,  133  111.  244.  507;  Culver  v.  PheljJS,  130  lU.  217. 

^Elston  V.  Deu;es,  28  111.  436;  see 
Under  y.  Monroe,  33  111.  388. 


822  JUDGMENTS. 

When  a  defendant  has  pleaded,  the  plaintiff  has  no  right  to 
have  him  called,  and  take  judgment  by  default;'  and  where  the 
record  shows  that  a  plea  was  filed,  and  a  judgment  by  default 
rendered,  on  the  same  day,  the  judgment  will  be  reversed." 

It  is  erroneous  to  proceed  to  judgment  by  default  against 
one  or  more  of  several  joint  defendants,  without  a  final  dis- 
position of  the  cause  as  to  the  others;^  and  where  one  pleads, 
the  cause  should  be  tried  before  a  rendition  of  final  judgment 
against  the  others.*  And  where  two  are  jointly  sued,  and  are 
served  with  process,  and  one  pleads,  and  procures  a  change 
of  venue,  and  the  other  makes  default,  it  is  error  to  take  judg- 
ment against  the  defendant  in  default  alone.*  Where  a  judg- 
ment is  vacated  as  to  one  of  several  defendants  it  must  be 
vacated  as  to  all.' 

See  Setting  Aside  Default,  P^ge  '^98,  ant^. 

Damages — Assessment  of. — Assessment  of  inquisitions  of 
damages  are  generally  taken,  in  Illinois,  in  open  court; '  but  a 
writ  of  inquiry  may  be  directed  to  the  sheriff  of  the  county, 
to  be  executed  in  vacation."  If  it  appears  that  an  important 
question  of  law  will  arise  on  the  execution  of  the  writ,  the 
court  will  order  it  to  be  executed  in  open  court.*  The  writ 
may  be  executed  by  the  sheriff  at  any  place  within  the  county.'" 
If  any  irregularity  occurs,  such  as  want  of  notice,  etc.,  the 
proper  course  is  to  move  the  court,  upon  affidavit  of  facts,  to  set 
aside  the  inquest;^'  and  the  insufficiency  of  the  writ  can  not  be 

^  Manlove    v.     Bruner,    1   Scam.  ^  Clajlin  v.  Dumie,  129  111.   241; 

390;  McKinney  v.  May,  1  Scam.  534 
Parrott  v.  Goss,  17  111.  App.  110 
Pana  v.  Humphreys,  39  111.  App 
641;  Barnett  v.  Craig,  38  111.  App, 
96;  Griswold  v.  Brock;  29  111.  App 
423;  Fauret  v.  Bank,  37  111.  App 
322;  Race  v.  Ass'n,  50  111.  App.  131 
Bank  v.  Fairbank,  54  111.  App.  296, 

^  Lyon    V.   Barney,  1  Scam.   387 

3  Kingsland  v.  Koeppe,  137  111.  344 

*  Wight  V.  Hoffman,  4  Scam.  361 


Reynolds  v.  Barnard,  36  III.  App. 
218. 

'  Bell  V.  Aydelott,  Breese  45;  see 
Ins.  Co.  V.  Phelps,  27111.  71;  Reeh  v. 
Bosch,  17  111.  App.  426. 

^Ins.  Co.  y.  Phelps,  27  111.  71; 
Vanlandingham  v.  Fellows,  1  Scam. 
233. 

^  Tillotson  V.   Cheetham,  2  Johns. 
107;  Tidd'sPr.  513. 
'"  Vanlandingham  v.    Fellows,    1 
Russell  V.  Hogan,  1   Scam.  552;  see      Scam.  233;  Ins.    Co.  v.  Phelps,  27 
Flake  v.  Carson,  33  111.  518.  111.  71. 

*  Jansen    v.  Grimshaio,    125  111.  "  Vanlandingham   v.    Fellows,  1 

468;  Brown  v.  Tattle,  27  111.  App.      Scam.  233;  Moore  y.  Purple,  3 Gilm. 
389.  149. 


JUDGMENTS.  823 

assigned  for  error,  the  proper  practice  being  to  move  the  court 
wherein  the  suit  is  pending  to  quash  it.*  The  sheriff,  in  ex- 
ecuting the  writ,  acts  ministerially,  and  not  judicially." 

In  the  assessment  of  damages  on  a  writ  of  inquiry,  the  de- 
fendant may  cross-examine  or  introduce  witnesses,  to  reduce 
the  amount  claimed;''  and  if  the  inquest  is  taken  in  open  court 
he  may  have  the  jury  instructed  as  to  the  law;  and  he  may 
take  a  bill  of  exceptions,  or  may  move  to  set  aside  the  in- 
quest, upon  affidavit  showing  the  evidence.* 

When  a  party  is  dissatisfied  with  an  assessment  of  damages 
on  default,  he  should  file  an  affidavit  showing  all  the  evidence 
heard,  and  move  to  set  aside  the  inquest,  or  the  default  and 
inquest;  and  in  case  the  court  denies  the  motion,  it  seems  the 
decision  may  be  reviewed  on  error.* 

The  default  of  the  defendant,  as  well  as  his  failure  to  plead 
over  after  a  demurrer  has  been  overruled,  admits  the  cause  of 
action,  but  not  the  amount  of  damages  claimed  in  the  declara- 
tion; and  the  amount  of  damages  may  be  litigated  upon  the 
writ  of  inquiry.®  A  default  precludes  the  defendant  from 
questioning  the  validity  of  an  indorsement  of  a  note  on  which 
he  is  sued.' 

The  statute  of  Illinois  provides  that  "  in  all  suits  in  the 
courts  of  record  in  this  state,  upon  default,  where  damages  are 
to  be  assessed,  it  shall  be  lawful  for  the  court  to  hear  the  evi- 
dence and  assess  the  damages,  without  a  jury  for  that  pur- 
pose. In  all  cases  where  interlocutory  judgment  shall  be  given 
in  any  action  brought  upon  a  penal  bond,  or  upon  any  instru- 
ment in  writing,  for  the  payment  of  money  only,  and  the  dam- 

'  Moore  v.  Purple,  3  Gilm,  149.  lett  v.  Stone,  1  Scam.  539;  Kalkaska 

2  Tilloison  v.    Cheetham,  2  Johns.       v.  Tliomas,  17  111.  App.  235. 

63;  Vanlandingham    v.  Fellows,   1  ^  Ilotsmger  v,  Colema7i,  Will.  71; 

Scam.  233.  see    Vanlandigham   v.    Felloios,    1 

3  And.    Steph,    PL    195,    note    2;      Scam.  233. 

Bridges  v.    Stephenson,   10  Bradw.  « R.  R.  Co.  v.  Lomax,  7  Ind.  406 

369;  Briggs  v.  Snegham,  45  Ind.  14;  Runnion  v.   Crane,  4  Blackf.  466 

Madison  Co.  v.  Smith,  95  111.  328;  see  R.  R.  Co.  v.  Ward,  16  111.  522 

Ry.  Co.  V.  Holbrook,  72  III.  419.  Lucas  v.  Spencer,  27  111.  15. 

*  See  R.  R.   Co.  v.  Ward,   16  111.  '  Underhill  v.  Kirkpatrick,  26  III. 

522;  Hotsingerv.  Coleman,  16111.  71;  84. 
Horton  v.  Bailey,  1   Scam.  213;  Gil- 


824  JUDGMENTS. 

ages  rest  in  computation,  the  court  may  refer  it  to  the  clerk, 
to  assess  and  report  the  damages,  and  may  enter  judgment 
therefor;  yrovided^  that  either  party  may  have  the  damages 
assessed  by  a  jury."  ' 

Judgment  of  nonsuit,  etc. — Judgment  of  nonsuit  may 
pass  against  the  plaintiff,  when,  on  the  trial,  he  abandons  his 
suit.  By  statute  in  Illinois,  if  the  plaintiff  desires  to  take  a 
nonsuit,  he  must  do  so  before  the  jury  retires  from  the  bar;  ^ 
and  it  is  held  that  when  a  cause  is  tried  by  the  court,  without 
a  jury,  a  nonsuit  may  be  taken  at  any  tiine  before  the  court 
notes  down  the  finding." 

If,  after  issue  is  joined,  the  plaintiff  neglects  to  bring  such 
issue  on  to  be  tried  in  due  time,  as  limited  by  the  course  and 
practice  of  the  court,  judgment  will  also  be  given  against  him 
for  his  default;  and  this  is  called  a  judgment  as  %n  case  of 
nonsuit^ 

A  nonsuit  is  not  regarded  as  a  confession  by  the  plaintiff 
that  he  has  no  cause  of  action,  for  the  judgment  in  favor  of 
the  defendant  is  no  bar  to  a  second  action  for  the  same  cause.^ 

Judgment  may  also  be  given  against  the  plaintiff  for  not 
declaring,  or  replying,  etc.;  and  these  are  called  judgments  of 
non  pros,  {non  prosequitur.)  So  if  he  chooses,  at  any  stage  of 
the  action,  after  appearance  and  before  judgment,  to  say  that 
he  "  will  not  further  prosecute  his  suit,"  or  that  he  '•  with- 
draws his  suit,"  or  (in  case  of  a  plea  in  abatement)  prays  that 
his  "  writ "  or  "  declaration  may  be  quashed,"  that  he  may 
resort  to  a  better  one — there  is  judgment  against  him  of  nolle 
r>rosequi,  retraxit,  or  cassetur  hreve,  or  narratio,  in  these  cases 
respectively.* 

In  cases  of  nonsuit  or  non  pros.,  the  plaintiff  may  be  called, 
and  his  default  entered,  in  like  manner  as  where  a  defendant 
makes  default,  as  above  mentioned. 

'  2  Starr  &  Curtis  1807;  Rev.   Stat.  PI.  195;  Haskell  v.  Whitney,  ISMass. 

(1893)  1076;  Rev.   Stat.  (1895)   1160;  47;  Berry  v.  Savage,  2  Scam.   261; 

Chicago  v.   Congdon,  111   111.   309;  Gordon  v.  GoocMZ,  34  111.  429. 

Palmer  y.  Harris,  98  III.  501;  Pinkel  ^  Hoive  v.  Harroum,  17   III.   494; 

V.  Machine   Co..  89  111.  277.  Adams  v.  Shepard,  24  111.  464. 

2  Rev.  Stat.  (1893)  1077);  Rev.  Stat.  *  And.  Steph.  PI.  195. 

(1895)1161;  2  Starr   &   Curtis   1812;  ^  3  Bla.  Com.  876. 

see  3  Bla.  Com.  376;   And.  Steph.  «And.  Steph.  PI.  195. 


JUDGMENTS.  825 

One  entitled  to  judgment  must  have  it  entered.  A  judg- 
ment nunc  j^ro  tunc  will  not  be  entered  if  the  dela}^  was 
caused  by  the  laches  of  plaintiff.' 

Judgment  on  demurrer. — Judgment  for  the  plaintiff  on 
demurrer  to  a  plea  in  abatement,  or  to  a  replication  to  such 
l^lea,  is  merely  that  the  defendant  answer  over — respondeat 
ouster.^  And  in  all  other  cases  of  demurrer,  in  actions  sound- 
ing in  damages,  the  judgment  for  the  plaintiff  is  interlocutory 
merely,  until  the  damages  are  assessed,  which  assessment  is 
made  in  the  same  manner  as  has  been  shown  in  the  case  of  a 
default,  when  final  judgment  is  given.  Judgment  for  the  de- 
fendant, on  demurrer,  is  in  all  cases  final.^  Except  in  the  case 
of  a  decision  for  the  defendant  on  demurrer  to  a  plea  in  abate- 
ment, or  to  a  replication  to  such  plea,  the  courts  in  Illinois 
usually  grant  leave,  if  asked,  to  the  party  against  whom  the 
decision  on  the  demurrer  is  made,  to  plead  over,  or  amend,  as 
the  case  may  be.* 

Judgment  on  verdict. — On  a  verdict,  the  judgment, 
whether  for  the  plaintiff  or  the  defendant,  is  final — the  jury  at 
the  same  time  trying  the  issue  and  assessing  the  damages,  if 
any  are  given. 

Form  of  judgment,  etc. — A  judgment  for  the  plaintiff 
(except  respondeat  ouster)  always  follows  the  nature  of  the 
action.  In  actions  of  assumpsit,  covenant,  trespass,  and  the 
like,  in  which  damages  only  are  demanded,  the  judgment  for 
the  plaintiff  h  that  he  recover  his  damages,  as  found  by  the 
verdict  (or  in  case  of  demurrer  or  default,  that  he  ought  to 
recover,  etc.,  and,  after  the  assessment,  that  he  recover,  etc.), 
together  with,  his  costs.  In  actions  of  deht,  the  judgment  is 
that  he  recover  his  debt,  and  damages,  if  any,  and  costs.  The 
proper  form  of  a  judgment  for  the  plaintiff,  in  an  action  of 
debt  on  a  penal  bond  conditioned  for  the  performance  of  cov- 
enants, is  that  he  recover  the  amount  of  the  debt,  to  be  dis- 
charged by  the  payment  of  the  damages  and  costs.*     In  eject- 

1  Tynan  v.  Weinhard,  153  111.  598.  Giles,  113  Mass.  34;  Parks  v.  Smith, 

2  And.  Steph.    PI.    192;   Smith    v.  155  Mass.  26. 
Harris,    12    111.    463;  Bradshatv  v.  ^gteph.  PI.  192-3. 
Morehouse,  1  Gilm.  395;  Young  v.          *See  section  3,  Prac.  Act. 

^  Eggleston    v.  Buck,  31    111.  254; 


S26  JUDGMENTS. 

ment,  the  entry  is  that  he  recover  the  premises  demanded  in 
the  declaration,  and  costs,  etc.  In  all  cases,  if  the  defendant 
prevails,  he  recovers  his  costs  merely  (except  where  he  has 
pleaded  and  proved  a  set-off  larger  than  the  amount  due  to  the 
plaintiff,  in  which  case  the  defendant  is  entitled  to  judgment 
for  the  excess,  as  well  as  for  his  costs);  and  if  the  issue  arises 
on  a  plea  in  abatement  of  the  writ,  etc.,  the  judgment  is  that 
the  writ  be  quashed,  etc.;  and  in  other  cases  the  judgment  is 
that  the  plaintiff  take  nothing  by  his  writ,  and  that  the  de- 
fendant go  thereof  without  day.  In  rej)levi7i,  final  judgment 
for  the  phi i/it iff  is  for  his  damages,  which  are  usually  nominal, 
as  the  goods  demanded  were  delivered  to  him  on  the  writ,  and 
for  his  costs.  For  the  defendant,  the  judgment  is  in  general 
for  a  return  of  the  goods,  and  for  his  costs.  In  detinue,  the 
judgment  is  in  the  alternative,  that  the  plaintiff  recover  the 
goods,  or  the  value  thereof,  and  his  damages  for  the  detention, 
and  costs.'  A  judgment  against  a  garnishee  should  be  for  the 
whole  amount  due  from  him  to  the  attachment  or  judgment 
debtor,  and  not  simply  for  the  sum  due  the  garnishing  creditor.^ 

In  no  case  can  a  plaintiff  recover  a  greater  sum  as  damages 
than  he  has  laid  in  his  declaration;  but  he  may  remit  the  excess 
and  have  judgment  for  the  residue."^ 

Where  the  jury  finds  a  sufficient  tender  to  have  been  made, 
the  court  should  render  judgment  in  favor  of  the  defendant 
for  costs,  and  give  the  plaintiff  leave  to  take  out  of  court  the 
sum  tendered;  and  in  such  case  the  jury  should  not  assess  any 
damages.* 

In  a  qui  tarn  action  on  a  statute,  giving  half  of  the  penalty 
to  the  informer,  a  judgment  against  the  defendant  should  be 
for  the  recovery  of  the  debt,  one-half  to  the  people  and  one- 
half  to  the  informer,  and  should  award  execution  in  that 
form.^ 

Parisherv.  Waldo,  73  111.  71;  R.  R.  v.   Wells,  40  111.  App.  355;  Ravi  v. 

Co.  V.  Steele,  69  111.   253;    O'NeU  v.  Perry,  39  111.  App.  341. 

Nelson,  32  111.  App.  531.  ^  Linder  v.    Monroe,   33    111.    388; 

'  And.  Steph.  PI.  80,  note;  1  Chit.  Pierson  v.  Finney,  37  111.  29. 

PI.  124;  1  Humph.  Pr.  •*  Cilley  v.  Hawkins,  48  III.  309. 

■^Kern  v.  Ass'n,  140  111.  371;  Ins.  ^  R.  R.  Co.  v.   Herr,   54  111.   356; 

Co.  V.  Kirk,  28  111.  App.  19;  Boddie  see  R.  R.  Co.  v.  Tait,  50  lU.  48. 
V.  Mfg.  Co.,  51  111.  App.  303;  Glover 


JUDGMENTS.  827 

Usage  in  this  state  has  justified  a  judgment  for  costs  with- 
out stating  the  amount;  but  in  general,  a  money  judgment  must 
be  for  a  sum  fixed.' 

JiHlgment  after  death  of  defendant. — If  jurisdiction  be 
obtained  of  the  person  of  a  defendant  in  his  lifetime,  b}'  service 
of  process  or  appearance,  a  judgment  against  him  after  his 
death  is  not  void,  but  only  voidable.  And  while  such  a  judg- 
ment can  not  be  attacked  collaterally,  it  may  be  reversed  on 
error,  if  the  fact  of  the  defendant's  death  appears  from  the 
record;  if  not,  the  judgment  may  be  vacated,  upon  motion,  in 
the  court  where  it  was  rendered." 

'Black  on  Judgments,  Sec.  118;  ^Claflin  v,  Dunne,  129  III.  241. 

Club  V.  Baldwin,  59  111.  App.  61. 


CHAPTER  XXXYL 

TRIAL    OF  RIGHT  OF  PROPERTY— INTERPLEADER   IN    ATTACH- 
MENT. 

Prior  to  the  enactment  of  the  statute  providing  for  a  trial 
of  the  right  of  property,  when  a  sheriff  levied  an  execution  on 
personal  property  claimed  by  a  party  other  than  the  defend- 
ant in  the  execution,  and  he  was  notified  of  such  claim,  if  he 
disregarded  the  notice  and  sold  the  property,  he  incurred 
thereby  all  the  liabilities  flowing  from  his  conduct  in  an 
action  brought  by  the  true  owner  or  claimant  against  him  for 
damao-es;  and  having  no  justification  or  excuse  for  selling 
property  not  belonging  to  the  defendant  in  the  execution,  he 
could  not  escape  a  recovery.  On  the  other  hand  if  he  refused 
to  sell  the  property  levied  upon,  the  plaintiff  in  the  execution 
could  bring  his  action  for  damages.  The  sheriff  was  thus 
placed  between  two  fires  with  no  possibility  of  escape;  and 
prior  to  the  statute  such  actions  were  quite  common,  result- 
in  o- in  great  losses  to  sheriffs  and  other  like  officers,' 

To  remedy  this  evil,  the  statute  of  1845  was  enacted,  which 
provided  for  an  inquiry  into  the  rights  of  the  parties  claiming 
the  property,  by  a  jury  presided  over  by  the  sheriff,  and 
enabled  the  sheriff  to  interpose  the  verdict  of  the  jury  as  his 
justification  for  selling  the  property,  or  restoring  it  to  the 
claimant,  as  the  verdict  might  direct.  In  the  case  of  Rowe 
V.  Boiven,  28  111.  116,  this  was  held  to  be  the  only  ob- 
ject of  the  statute;  that  the  proceeding  did  not  conclude 
the  parties  contesting;  that  should  the  verdict  of  the  jury 
be  against  the  claimant  he  could,  notwithstanding,  bring 
his  action  against  any  party  meddling  with  the  property,  other 
than  the  sheriff,  and  that  the  sheriff  might,  notwithstanding  a 
verdict  for  the  claimant,  retain  and  sell  the  property  at  his 
peril  if  he  chose  so  to  do.^ 

I  Rou-e  V.  Boicen,  28  111.  120.  Hihbard   v.    Thrasher,  65  111.  479; 

-  See  Foltz  v.  Stevens,  54  111.  180;      Jones  v.  Peoj)le,  19  Braclw.  300. 

(828) 


TEIAL    OF   EIGHT    OF    PROPERTr.  829 

The  court  was  driven  to  this  conclusion  in  order  to  uphold 
the  law  as  it  then  was,  for  the  reason  that  the  proceeding  was 
before  the  sheriff,  and  under  the  constitution,  no  judicial  power 
could  be  vested  in  such  an  officer.  In  that  case,  however,  Mr. 
Justice  Caton,  in  a  dissenting  opinion,  makes  the  logical  point, 
the  effect  of  which  is,  that  while  the  proceeding  before  the  sheriff 
was  not  judicial,  j^et,  the  statute  giving  the  right  of  appeal  to 
the  circuit  court,  the  parties  who  availed  themselves  of  it  were 
thereby  brought  before  a  tribunal  that  had  the  power  to  hear 
and  determine  causes,  and  therefore  its  judgment  would  he  res 
adjucUcata  as  to  all  parties  and  privies. 

The  present  statute  (Sec.  10)  provides  that  if  judgment  is 
rendered  in  favor  of  the  claimant,  the  property  levied  upon 
shall  be  released.  Under  Sec.  11  the  defeated  party  in  such  a 
trial  may  ap]3eal,  provided  the  same  is  prayed  on  the  day  of 
entering  judgment.  There  was  no  such  proviso  in  the  old 
statute.  This  proviso  is  doubtless  mandatory  and  the  prayer 
on  that  day  a  prerequisite  to  the  right,  at  least,  as  against  a 
sale  before  the  bond  is  filed,  to  perfect  the  appeal  thereafter. 
The  purpose  of  this  requirement,  evidently,  was  that  the  officer 
might  know  whether  or  not  he  should  proceed  to  sell,  if  the 
time  for  sale  had  been  fixed  to  take  place  within  the  five  days 
allowed  for  appeal,  or  proceed  to  advertise  for  sale  if  it  had 
not  already  been  done.^ 

The  plaintiff  and  defendant  in  an  execution  issued  pending 
a  trial  of  the  right  of  property  between  the  latter  as  claimant 
and  the  judgment  creditors  of  a  third  person,  in  goods  levied 
on  as  property  of  such  third  person,  are  in  such  privity 
of  relation  that  both  will  be  alike  bound  by  a  judgment 
finding  the  right  of  property  against  the  claimant.' 

The  circuit  court  is  not,  by  the  act  providing  for  trial  of 
right  of  property  in  the  county  court,  deprived  of  jurisdiction 
to  determine  the  right  to  attached  property  claimed  by  a  third 
person,  under  the  provision  of  the  attachment  and  garnish- 
ment act.' 

Proceedings  for. — Section  1  of  the  statute  provides  that 

'  People  V.  Ward,  41  III.  App.  470;  ^  Hill  v.  Reitz,  24  111.  App.  391. 

Ilg  V.  Eurhaiik,  59  lU.  App.  296.  ^Springer  v.  Bigford,  160  111.  495. 


830  TRIAL    OF   RIGHT   OF   PROPERTY. 

"  whenever  an  execution  or  writ  of  attachment,  iss.ued  from 
any  court  of  record,  shall  be  levied  by  any  sheriff  or  coroner 
upon  any  personal  property,  and  such  property  shall  be  claimed 
by  any  person  other  than  the  defendant  in  such  execution  or 
attachment,  or  shall  be  claimed  by  the  defendant  in  execution 
or  attachment  as  exempt  from  execution  or  attachment  by 
virtue  of  the  exemption  laws  of  the  state,  by  giving  to  the 
sheriff  or  coroner  notice,  in  writing,  of  his  claim,  and  intention 
to  prosecute  the  same,  it  shall  be  the  duty  of  such  sheriff  or 
coroner  to  notify  the  judge  of  the  county  court  of  such  claim." 

The  statute  does  not  require  the  claimant  of  property  taken 
on  execution  to  state  on  whose  execution  the  levy  had  been 
made,  in  the  notice  he  serves.  Notice  to  the  officer  that  he 
claims  the  goods  levied  on,  intends  to  prosecute  his  claim,  and 
forbids  the  sale,  is  sufficient.' 

A  landlord  who  has  distrained  upon  the  goods  of  his  tenant, 
has  a  sufficient  interest  in  them  to  enable  him  to  be  the  claim- 
ant of  the  same  on  a  trial  of  the  right  of  property,  if  they  are 
subsequently  taken  in  execution.'' 

Making  the  claim  to  property  which  has  been  levied  upon 
is  merely  an  act  in  pais,  and  may  be  performed  by  an  ordinary 
agent.^ 

Trial  in  county  court. — Section  2  provides  that  the  judge 
of  the  county  court  shall  thereupon  cause  the  proceciing  to 
be  entered  on  the  docket  of  the  county  court,  and  the  claimant 
shall  be  made  plaintiff  in  the  proceeding  before  the  county  court, 
and  tlie  plaintiff  in  the  execution  or  attachment  shall  be  made 
defendant  in  such  proceeding. 

Notice. — Section  3  provides  that  the  clerk  of  the  county 
court  shall  thereupon  issue  a  notice,  directed  to  the  plaintiff 
in  the  execution  or  attachment,  notifying  him  of  such  claim, 
and  of  the  time  and  place  of  trial,  which  time  shall  not  be 
more  than  ten  da^'^s  nor  less  than  five  days  from  the  date  of 
such  notice. 

Service  of  notice — Continuance. — Section  4  provides  that 
such  notice  shall  be  served  by  the  sheriff  or  coroner  of  any 

1  Pearce   v.   Swan,    1   Scam,   266;  »  Webber  v.  Brown,  38  111,  87. 

^  Orimsley  v,  Klein,  1  Scam.  342; 


TEIAL   OF   RIGHT    OF    PROPERTY.  831 

county  where  tlie  plaintiff  in  execution  or  attachment  may  be 
found,  in  like  manner  as  summonses  in  chancery  are  served, 
at  least  five  days  before  the  day  of  trial;  and  if  such  notice 
shall  be  served  less  than  five  days  before  the  day  of  trial,  the 
trial  shall,  on  demand  of  either  party,  be  continued  for  a  period 
not  exceeding  ten  days. 

Notice  by  publication. — Section  5  provides  that  in  case  the 
sheriff  or  coroner  shall  make  return  of  such  notice  that  the 
plaintiff  in  the  execution  or  attachment  can  not  be  found,  the 
proceeding  shall  be  continued  for  a  period  of  not  exceeding 
ninety  days,  and  the  plaintiff  in  the  execution  or  attachment 
shall  be  notified  of  such  proceeding  by  publication  in  like 
manner  as  non-resident  defendants  are  notified  in  chancery 
cases. 

Entering  appearance. — Section  6  provides  that  if  the 
plaintiff  in  the  execution  or  attachment,  or  his  attorney,  shall, 
at  least  five  days  before  the  day. of  trial,  file  with  the  clerk  of 
the  county  court  a  paper  entering  his  appearance  in  such  pro- 
ceeding, then  it  shall  not  be  necessary  to  notify  such  plaintiff 
as  above  provided. 

Trial — Pleading— Jury.— Section  7  provides  that  the  trial 
shall  be  without  written  pleadings,  before  the  county  judge, 
in  the  same  manner  as  other  trials  before  the  county  court,  and 
may  be  by  a  jury  if  either  party  demand  one. 

A  claimant  of  personal  property  levied  on  under  an  execu- 
tion against  another  person,  by  giving  notice  of  a  trial  of  the 
rights  of  property,  admits  the  validity  of  the  execution.' 

On  the  trial  of  the  right  of  property,  a  recital  in  the  execu- 
tion of  the  rendition  of  the  judgment  is  sufficient  proof  of  the 
judgment;  the  claimant,  by  giving  notice,  admits  the  regularity 
and  existence  of  the  proceedings  against  the  defendant." 

In  a  trial  of  the  right  of  property,  the  only  question  for  de- 
cision is  whether  the  property  belongs  to  the  claimant,  and 
,  the  burden  of  proof  is  upon  the  claimant.^ 

Trial  by  jury. — Section  8  provides  that  if  a  jury  shall  be 
demanded  by  either  party,  the  judge  shall  direct  the  county 

^Thomx>sonv.  Wilhite,  81  111.  356;  ^Marshall  v.  Cunnhighmn,  13  111. 

Merrick  V.  Davis,  Q^  III.  319.  20;  Hansen  v.  Dennison.  7  Bradw. 

"^Dexter  v.  Parkins,  32  111.  143.  73;  Hardin  v.  Sissoii,  3G  111.  App.  386. 


832  TRIAL    OF    RIGHT    OF    PROPERTY. 

clerk  to  issue  a  venire  for  twelve  competent  jurors,  unless  the 
parties  to  such  proceeding  shall  elect  to  have  the  same  tried 
by  six  jurors,  and  deliver  the  same  to  the  sheriff  or  coroner, 
who  shall  summon  such  jurors  from  the  body  of  the  county, 
to  be  and  appear  before  such  court  at  the  time  set  for  the  re- 
turn of  such  venire;  and  if  by  reason  of  non-attendance,  chal- 
lenge or  otherwise,  said  jury  shall  not  be  full,  the  panel  may  be 
filled  by  talesmen.  Said  court  shall  have  the  same  power  to 
compel  the  attendance  of  jurors  and  witnesses  as  the  circuit 
court  has,  and  shall  be  governed  by  the  same  rules  in  impan- 
eling a  jury.' 

Subpcpnas  for  witnesses. — Section  9  provides  that  the 
county  clerk  shall  issue  subpoenas  for  witnesses  on  the  demand 
of  either  part}^. 

Judgment — Exempt  property— Costs. — Section  10  pro- 
vides that  in  case  the  property  shall  appear  to  belong  to  the 
claimant,  when  the  claimant  is  any  person  other  than  the  de- 
fendant in  execution  or  attachment,  or  in  case  the  property 
shall  be  found  to  be  exempt  from  execution  or  attachment, 
when  the  claimant  is  the  defendant  in  the  execution  or  attach- 
ment, judgment  shall  be  entered  against  the  plaintiff  in  the 
execution  or  attachment  for  the  costs,  and  the  property  levied 
upon  shall  be  released.  If  it  shall  appear  that  the  property  does 
not  belong  to  the  claimant,  or  is  not  exempt  from  execution  or 
attachment,  as  the  case  may  be,  judgment  shall  be  entered 
against  the  claimant  for  costs,  and  an  order  shall  be  made  that 
the  sheriff  or  coroner  proceed  to  sell  the  property  levied  on. 

Appeal — Bond — Trial  de  novo. — Section  11  provides  that 
an  appeal  may  be  taken  to  the  circuit  court,  as  in  other  cases; 
])rovided,  the  same  is  prayed  on  the  day  of  the  entering  of 
judgment;  and  the  bond  shall  be  given  within  five  days  from 
the  time  of  entering  judgment,  and  the  trial  in  the  circuit 
court  shall  be  de  novo.^ 

Judgment — Indemnity. — Section  12  provides  that  the  judg- 
ment in  such  cases  shall  be  a  complete  indemnity  to  the  sheriff 
or  coroner  in  selling  or  restoring  any  such  property,  as  the 
case  may  be. 

iRev.Stat.  (1893)  1458;  Rev.  Stat.  *See  People  v.  Ward,   41  111.  App. 

(1895)  1557;  2  Starr  &  Curtis,  1413.       470;  Ilg  v.  Burbank,  59111.  App.  296. 


TKIAL   OF   EIGHT    OF   PROPERTY.  833 

Apportionment  of  costs— Fees.^Section  13  provides  that 
ii  the  judgment  shall  be  for  the  claimant  as  to  part  of  the  prop- 
erty, and  for  the  plaintiff  in  execution  or  attachment  as  to  part, 
then  the  court  shall  apportion  the  costs  in  his  discretion;  and 
the  sheriff,  coroner  and  county  clerk  shall  have  the  same  fees 
as  are  allowed  by  law  for  similar  services. 

No.  392.     Notice  to  sheriff  of  claim  to  proj^erty  held  by  him. 

State  of  Illinois,  ) 
County  of .      [  ^• 


(Claimant,) 
vs.  V     Trial  of  right  of  property. 

(Plaintiff  in  writ.) 

To , 

Sheriff  of  said  County. 

You  will  take  notice  that  I  claim  to  be  the  owner  of  the  following 
described  goods  and  chattels,  to  wit  (here  describe  jiroperty),  which  said 

goods  and  chattels  were  on  the day  of ,  18 — ,  seized  and  attached 

by  you  under  and  by  virtue  of  a  certain  writ  of  (*)  attachment  issued  out 

of  the  office  of  the  clerk  of  the court  of  the  county  of on  the 

day  of ,  18 — ,  at  the  suit  of ,  plaintiff,  and  against  the  estate  of , 

defendant; 

That  the  said  goods  and  chattels  so  seized  and  attached  (*)  by  you  as 
aforesaid  were  at  the  time  the  same  were  so  seized  and  attached  and  still 
are  my  property  and  that  I  intend  to  prosecute  my  said  claim  therefor. 

You  will  therefore  please  notify  the  judge  of  tlie  county  court  of  your 
said  county  of  my  claim,  to  the  end  that  a  trial  of  the  right  of  property 
in  the  said  goods  and  chattels  maybe  had  as  provided  by  section  1,  chapter 
140a,  of  the  revised  statutes  of  Illinois. 


Claimant. 

If  the  property  has  been  seized  and  levied  upon,  under  and 
by  virtue  of  a  writ  of  Jieri  facias,  omit  all  between  the  aster- 
isks in  the  above  precedent  and  insert  in  lieu  thereof  the  fol- 
lowing : 

*'  Fieri  facias  issued  out  of  the  office  of  the  clerk  of  the court  of  the 

county  of ,  on  the  ■ day  of ,  18 — ,  under  and  upon   a  certain 

judgment  (or  decree)  rendered  by  said  court  on  the  day  of ,  18 — , 

in   favor  of  ,   plaintiff,    and    against  ,  defendant;    that  the  said 

goods  and  chattels  so   seized  and  levied  upon,"  etc. 
53 


834:  INTEEPLEADEE  IN  ATTACHMENT. 

INTEKPLEADEE  IN  ATTACHMENT. 

Section  29  of  the  Attachment  Act  provides  that  "  In  all 
cases  of  attachment,  any  ]ierson,  other  than  the  defendant, 
claiming  the  jDropertj^  attached,  may  interplead,  verifying 
his  plea  by  affidavit,  without  giving  bail,  but  the  property  at- 
tached shall  not  thereby  be  replevied;  and  the  court  shall 
immediately  (unless  good  cause  be  shown  by  either  party  for 
a  continuance)  direct  a  jury  to  be  impaneled  to  inquire  into 
the  right  of  property;  in  all  cases  where  the  jury  find  for  a 
claimant,  such  claimant  shall  be  entitled  to  his  costs;  and 
where  the  jury  find  for  the  plaintiff  in  the  attachment,  such 
plaintiff  shall  recover  his  costs  against  such  claimant.  If  such 
claimant  is  a  non-resident  of  the  state  he  shall  file  security  for 
costs  as  in  case  of  non-resident  plaintiff."  ' 

The  statutory  interpleader  to  try  the  title  to  property  seized 
by  attachment,  is  a  substantial  and  valuable  statutory  right, 
and  as  it  tends  to  prevent  multiplicity  of  suits,  the  claimant 
of  the  property  Avho  asserts  such  right  should  not  be  deprived 
of  it  on  merely  technical  grounds. 

The  statute  allowing  an  interpleader  in  an  attachment  suit, 
does  not,  in  terms,  say  that  it  shall  be  tried,  or  even  interposed, 
before  judgment  in  the  original  attachment  suit.  But  the 
better  practice  is,  first  to  settle  the  matter  of  the  interpleader, 
and  then  render  judgment  upon  the  attachment;  or,  if  such 
judgment  has  already  been  taken,  to  open  it  for  the  purpose 
of  permitting  the  interpleader. 

The  remedy  by  interpleader  lies  in  respect  to  both  personal 
and  real  estate,"  but  it  must  be  interposed  while  the  attach- 
ment suit  is  still  hi  fieri,  which  is  before  or  during  the  term  at 
which  final  judgment  is  entered  against  the  defendant  in  at- 
tachment. 

If  an  interpleader  is  not  filed  in  apt  time  in  an  attachment 
suit,  the  plaintiff  should  move  to  strike  it  from  the  files.  If, 
however,  he  demurs  to  the  pleading,  this  will  amount  to  a 
waiver  of  the  objection  that  it  was  filed  too  late,^ 

1  Starr  &  Curtis  323;  Rev.  Stat.  Wear,  145  111.  653;  7ns.  Co.  v.  Bank, 
(1893),  173;  Rev.  Stat.  (1895)  177.  68  111.  348. 

2  JuilUard  v.  May,  130  111.  87;  Bost-  ^  Juilliard  v.  May,  130  111.  87. 
wick  V.  Blake,  145  111.  85;  Ducker  v. 


INTERPLEADER  IN  ATTACHMENT.  835 

Where  the  issues  formed  upon  an  interpleader  are  found  for 
the  claimant  after  judgment  against  the  defendant  in  the  at- 
tachment and  the  issue  of  special  execution,  the  court  will 
have  ample  power  to  see  that  its  process  is  not  abused  by  mak- 
ing it  the  means  of  selling  the  property  of  one  for  the  debt  of 
another  for  which  the  former  is  not  legally  liable.  The  court 
can  protect  the  successful  claimant  in  his  rights  of  property 
without  vacating  or  changing  the  judgment  rendered  at  a 
prior  term  against  the  defendant  in  attachment.  A  claimant 
of  property  attached  is  not  bound  by  the  judgment  against 
the  defendant  in  the  attachment,  ordering  a  sale  of  the  prop- 
erty.    He  stands  in  the  attitude  of  a  stranger  to  the  record.' 

The  statute  contemplates  a  speedy  trial  of  an  interpleader, 
and  yet  it  gives  either  party  a  right  of  continuance  for  good 
cause  shown." 

Under  the  statute  giving  any  person,  other  than  the  defend- 
ant in  attachment,  the  right  to  interplead  and  claim  the  prop- 
erty attached,  a  judgment  in  favor  of  a  mortgagee  so  inter- 
pleading will  be  conclusive  of  his  rights  under  the  mortgage, 
as  against  the  attaching  creditor.  But  third  persons  can  not 
litigate,  in  the  name  of  the  defendant  in  attachment,  their 
rights  to  the  property  attached.^ 

In  an  attachment  proceeding  wherein  certain  insurance 
companies  were  garnished,  third  persons  interpleading  and 
claiming  money  due  therefrom,  it  is  not  proper,  the  court 
finding  that  the  interpleaders  made  out  their  cases,  to  render 
judgment  in  their  favor  for  the  amount  due  them,  and  for  the 
attaching  creditors  for  the  balance;  the  proper  practice  in  such 
case  is  to  discharge  the  garnishees  upon  payment  to  the  latter 
of  this  last  sum  named." 

The  proceeding  by  way  of  interpleader  authorized  in  courts 
of  record,  is  not  applicable  to  cases  of  attachment  before  jus- 
tices of  the  peace.^ 

The   only   question  under   an  interplea  is  the  title  to  the 

'  Juilliard  v.  May,  130  111.  87.  *  Glover  v.  Wells,  40  111.  App.  350, 

2  Juilliard  v.  May,  130  111.  87.  ^Stafford  v.  Scroggin,  43  111.  App. 

^Weber  v,  Mick,  131  lU,  520.  48. 


S36  INTEKPLEADER  IN  ATTACHMENT. 

property  in  dispute,  and  upon  this  the  burden  of  proof  is  on 
the  interpleader.' 

Fraudulent  sales  being  good  as  between  the  parties  to  the 
transaction,  whether  the  defense  to  the  claim  of  the  purchaser 
be  interposed  by  the  officer  or  the  plaintiff  in  attachment 
i  uit,  he  must  first  estabfish  the  fact  of  the  indebtedness.' 

Upon  the  trial  between  an  intervening  claimant  of  the 
attached  property  and  the  plaintiff  in  attachment,  the  judg- 
ment obtained  against  the  defendant  in  the  attachment  suit  is 
no  evidence  against  the  intervenor  of  any  debt  from  the  de- 
fendant to  the  plaintiff  existing  before  the  entry  of  the  judg- 
ment, nor  of  the  truth  of  any  of  the  averments  in  the  declara- 
tion. If  the  plaintiff  attacks  the  disposition  of  the  property 
by  the  defendant  for  fraud  on  creditors  he  must  prove  his  debt 

Where  the  sheriff  has  money  deposited  in  bank  as  such 
sheriff,  belonging  to  various  execution  creditors,  and  the  bank 
is  o-arnisheed  for  an  individual  debt  of  the  sheriff,  he  may,  as 
trustee  for  and  on  behalf  of  the  persons  for  whose  use  he  holds 
such  moneys,  interplead,  showing  the  facts  of  the  case,  and 
thereby  protect  the  fund  for  those  entitled  to  the  same.  A 
demurrer  to  such  interpleader  recognizes  it  as  properly  filed.* 

In  an  attachment  suit,  an  interpleader  tenders  the  simple 
issue  of  property  in  the  property  in  controversy,  and  that 
question  can  only  be  met  by  a  traverse;  pleading  property  in 
any  one  else  without  specifically  denying  property  in  the 
party  interpleading,  is  foreign  to  the  issue  tendered  and  a  de- 
murrer will  lie  thereto." 

It  is  competent  for  the  a-ssignee  of  insolvent  debtors,  when 
his  assignors  have  refused  to  traverse  the  facts  stated  in  the 
affidavit  upon  which  an  attachment  suit  had  issued  against 
them,  not  because  those  facts  were  true,  but  because  of  collu- 

^  Marshall  v.  Cunningham,  13  111.  ^  Springer  v.  Bigford,  55  IlL  App. 

30;  Dexter  v.   Perkins,  22  111.    143;  198. 

Merrick  v.  Dai-is,   65  111.    319;  5os^  *  Meadmccroft    v.    Agnew,  89  111, 

wick  V.  Blake,  145  111.  85;    Bank  v  469. 

Canniff,  51  111.  App.  579.  *  Bipley  v.  Bank,  18  Bradw.  430. 

'^  Batik  V.    Canniff,  51    111.   App. 
579, 


INTEKPLEADEE  IN  ATTACHMENT.  837 

sion  with  the  plaintiffs  in  the  attachment  suits,  upon  leave  of 
court  to  intervene  by  interplea,  setting  up  the  assignment  and 
his  title  to  the  property,  and  to  traverse  in  the  same  plea  the 
alleged  facts  in  which  the  attachment  was  issued.' 

A  judgment  creditor  can  interplead  in  an  attachment  suit, 
and  set  aside  a  judgment  entered  therein  on  a  debt  not  due.' 

For  form  of  interpleader,  see  precedent  No.  220,  page  388, 
ante. 

^FarweU  v.  Jenkins,  18  Bradw.  ^Schilling  v.  Deane,  36  El.  App. 
491.  513. 


CHAPTER  XXXVII. 

TRIAL  AND  VERDICT. 

Who  may  open  the  case. — The  general  rule  is,  that  the 
party  having  the  aflfinnative  of  the  issue,  and  consequently  the 
burden  of  the  proof,  shall  open  and  close  the  case  to  the  jury.' 
Where  the  defendant  pleads  the  general  issue  and  also  special 
pleas  and  the  general  issue  is  not  waived,  the  plaintiff  always 
opens  and  closes;  ^  but  if  the  defendant,  at  the  opening  of  the 
trial,  waives  the  general  issue;  ^  or  if  he  pleads  only  a  special 
plea  in  avoidance  or  justification,  and  issue  is  taken  upon  it, 
he  will  be  entitled  to  the  opening  and  closing  of  the  case  to 
the  jury.*  If,  however,  the  replication  to  such  special  plea 
confesses  and  avoids  it,  as  in  the  case  of  a  plea  of  infancy, 
where  a  new  promise  is  set  up  in  the  replication,  it  seems  that 
the  plaintiff  again  acquires  the  right  of  opening  and  closing.* 
And  when  there  are  several  issues,  if  the  plaintiff  has  the 
affirmative  on  either,  he  has  the  right  to  open  and  close  the 
case. 

Order  of  proceedings  on  the  trial. — The  counsel  of  the 
party  having  the  affirmative  opens  the  case  by  reading  to  the 
jurv  the  declaration  and  subsequent  pleadings,  or  stating  the 
substance  of  the  same— giving  the  jury  to  understand  the  ques- 
tions to  be  determined — and  briefly  stating  the  facts  and  cir- 

^  Harvey  v.  Ellithorpe,  26  III.  418;  ^R.  R.  Co.  v.  Bryan,  90  111.  126. 

Heivard  v.  Slagle,  52  111.  336;  Hud-  '^  Park  Com'rs  v.  Trustees,  107  Til. 

dlev.  Martin,  54  111.  258;  Colwell  v.  489;  Williams  v.   Shup,  12  Bradw. 

Brower,   75    111.    516;    Carpenter  v.  454;  Hai^vey  y .  Ellithorpe,  2ij  111.  il8; 

Bank,  119  111.    352;    McReynolds  v.  Kelts  v.  Davis,  57  111.  261. 

R.  R.  Co.,   106  111.    152;  Carroll  v.  ^ Davis  v.    Mason,    4    Pick.    156; 

Holmes,  24  111.  App.  453.  Sawyer    v.    Merrill,    6    Pick.    478; 

2  Fa?icev.  Fance,  2  Mete.  (Ky.)  581;  Brooks\.  Barrett,  1  Vick.  94;  Ayer 

Chesley  v.    Chesley,    37  N.  H.  229;  v.  Austin,  6  Pick.  225;  Edwards  v. 

Carpenter  v.  Bank,  119  111.  352.  Hushing,  31  III.  App.  223. 

(838) 


TRIAL    AND    YEEDICT.  839 

cumstances  of  the  case,  as  they  will  appear  from  the  evidence 
to  be  adduced,  the  application  of  the  evidence  to  the  points  in 
issue,  and  the  principles  of  law  governing  the  same.  He  may 
also  state  the  matters  of  defense,  if  they  appear  from  the 
pleadings,  or  from  a  notice  of  set-off,  or  the  like,  and  also  the 
evidence  by  which  those  matters  can  be  disproved.' 

The  opposite  counsel  then  states  to  the  jury  the  matters  of 
his  client's  defense,  and  the  evidence  which  he  will  adduce  in 
support  of  it,  and  comments  upon  the  statements  of  the  oppo- 
site part}'',  so  far  as  to  make  his  own  case  intelligible.  Or,  the 
counsel  may  waive  his  statement  of  the  defense,  until  the 
opposite  party  has  rested  his  case.  The  usual  practice  in  Illi- 
nois, however,  is  for  both  parties  to  state  their  cases  respect- 
ively to  the  jury,  before  the  examination  of  witnesses  on  either 
side.  The  limiting  of  the  argument  is  a  matter  resting  in  the 
sound  discretion  of  the  court,''  but  it  should  be  reasonably 
exercised  in  view  of  the  character  and  facts  of  the  case  on 
trial.^  Counsel  in  argument  to  the  jury  should  not  use  extrav- 
agant and  intemperate  language,  calculated  to  arouse  passion 
or  prejudice,'  nor  use  language  abusive  of  the  parties,  nor  refer 
to  irrelevant  matters.* 

If  any  question  arises  in  the  course  of  the  trial,  as  to  the 
competency  of  a  witness,  it  must  be  determined  before  the 
witness  is  allowed  to  proceed.  If  a  child  is  offered  as  a  wit- 
ness, the  court  will  first  examine  it  as  to  its  sense  of  the  obli- 
gation of  an  oath,  before  permitting  it  to  be  sworn."  Where 
the  objection  is  upon  the  ground  of  the  infamy  of  the  witness, 
such  objection  ought  to  be  made  before  the  witness  is  sworn; 
and  the  record  of  his  conviction  should  be  produced.'  A  wit- 
ness is  not  bound  to  answer  a  question  in  regard  to  any  offense 

^DeWane  v.  Hanson,  56  111.  App.  p7e,  107  111.    113;  Elgin  v.  Eaton,  2 

575.  Brad%v.  90;  Herkimer  v.  Shea,  21  HI. 

Wostery.3IaGin,nQm.'7rr,Wins-  App.  85;   E.  R.  Co.  v.  Perkins,  125 

low   V.  Bloomington,  24    111.   App.  111.  127. 

647.  ^Draper  v.  Draper,  68  111.  17. 

3  PT/iiYe  V.  Peop/e,  90  111.  117,  "<  Moloney  v.    Daws,   2  Hilton  (N- 

<i2i/.  Co.  V.  il/ajr,  33  111.  App.  366.  Y.),    247;    2    Stark.   Ev.  716;    Bar- 

^Hennies  v.  Vogue,  87111.  242;  Fox  tholomeiv  v.  Peojjle,  104  111.  601. 

V.  People,  95  111.  71;  Duffins  v.  Peo- 


840  TKIAL   AND    VERDICT. 

imputed  to  him,  which  would  subject  him  to  punishment.' 
Whether  he  is  bound  to  answer  a  question  to  his  own  disgrace 
merely,  is  not  fully  settled,  but  it  seems  that  such  question 
may  be  asked.*  In  Illinois  a  witness  is  not  disqualified  by  rea- 
son of  his  conviction  of  any  crime.'' 

In  general,  the  party  who  has  the  burden  of  proof  must  in 
the  first  instance  produce  all  the  proofs  he  intends  to  offer  in 
support  of  his  allegation,  and  in  closing  he  is  confined  to  evi- 
dence which  is  directly  in  rebuttal.* 

The  court  has  a  discretion,  however,  in  the  matter,  which 
should  be  exercised  so  that  neither  party  may  be  taken  by  sur- 
prise, or  deprived  without  notice,  of  an  opportunity  to  intro- 
duce material  evidence.' 

The  court  may,  in  its  discretion,  permit  the  introduction  of 
evidence  in  chief  at  any  time  before  or  even  after  the  opening 
of  the  argument,  as  justice  may  require.* 

When  the  parties  have  concluded  their  evidence,  the  case  is 
argued  to  the  jury  by  the  counsel  for  the  party  having  the 
affirmative  of  the  issue,  after  which  the  opposite  party  may 
reply,  and  then  the  former  has  the  closing  of  the  argument. 

After  the  argument,  the  court  instructs  the  jury  as  to  the 
law  of  the  case,  upon  the  evidence  adduced,  and  the  case  is 
then  committed  to  the  jury.  In  Illinois,  the  instructions  must 
be  reduced  to  writing.' 

^ Smith  V.  People,  20  111.  App.  591;  R.  Co.,  29111.  App.  250;  Chamberlain 

Weldon  v.  Burch,  12  lU.  374;  Ray  v.  Chamber-lain,  116  111.  483;  Mosher 

V.  Bell,  24  111.  444.  v.  Rogers,  117  111.  446. 

■^JSieivcomb.-v.  State,  37  Miss.  £83;  'Rev.  Stat.  (1893)  1078;  Rev.  Stat. 

1  Stark.  Ev.  137,  144.  (1895)   1162;  2   Starr  &  Curtis  1814; 

3  Rev.    Stat.  (1893)   715;  Rev.  Stat.  Evans  v.  George,  80111.  51;  R.  R.  Co. 

(1895)  763;  Starr  &  Curtis  1071.  v.  Harirood,  80  111.    88;  Stoiivll  v. 

*  Mueller  v.  Reblmn,  94  111.  142.  Beagle,  79  111.  525;  Ogden  v.  Kirby, 

3  lb.  79  111.  555;  R.  R.  Co.  v.  Chisholm,  79 

« Bridge   Co.  v.    Jameson,  48   111.  111.  584;  Roach  v.  People,  77  III.  25; 

281;  Goodrich  v.  Minonk,  62  111.  121;  Wickenkamp  v.  Wickenhamp,  77  111. 

Elgin  v.  Renioick,  86  111.  498;    Wind-  92;  Reinback  v.  Crabtree,  77  111.  182; 

heim  V.    Ohlendorf,  3   Bradw.    436;  R.  H.  Co.  v.  Moore,  77111.  217;  Drohn 

Wilburn  v.  Odell,  29  111.    456;  Row-  v.  Brewer,  77  111.  280;  R.  R.  Co.  v. 

ley  V.  Hughes,  40  111.  316;    Munford  Ingraham,  77111.  309;  Millers.  Balt- 

V.  Miller,  7  Bradw.  62;  R.  R.  Co.  v  hasser,  78  111.  302;  Tuttle  v.  RoUn- 

Maroney,  95  111.    179;  Fenton  v.  R.  son,  78  111.  332;  Chicago  v.  McGivin, 


TRIAL   AND    VEEDICT.  841 

Deliberations  of  the  jury.— After  the  case  has  thus  been 
committed  to  the  jur}^,  unless  a  verdict  is  agreed  upon\yithout 
quitting  the  jury-box,  the  jurors  retire  to  a  room  provided  for 
the  purpose,  to  deliberate  upon  their  verdict,  a  sworn  officer 
accompanying  and  taking  charge  of  them. 

After  the  jurors  have  retired,  they  are  not  allowed  to  speak 
with  any  person  save  the  officer  who  attends  them,  and  not 
with  him  except  to  tell  him  whether  or  not  they  have  agreed 
upon  their  verdict.  Xeither  can  they  receive  any  new  evi- 
dence, after  having  so  retired.  Even  the  judge  who  presided 
at  the  trial  is  not  permitted  to  give  any  instructions  or  direc- 
tions to  the  jury  respecting  the  cause,  unless  in  open  court, 
and,  where  practicable,  in  the  presence  of  both  parties.  Any 
such  communication  will  be  a  good  ground  for  a  new  trial.' 
But  the  jury  may  be  called  into  the  court  for  further  instruc- 
tions, either  by  agreement  of  counsel,  or  at  the  request  of  the 
jury,2  and  additional  written  instructions  may  be  given  in 
respect  to  a  material  point  in  the  case  concerning  which  no 
instruction  has  been  given,  where  equal  opportunity  has  been 
given  to  each  side  to  submit  further  instructions.^  In  Illinois, 
all  papers  read  in  evidence,  other  than  depositions,  may  be 
carried  from  the  bar  by  the  jury.* 

The  jury  should  remain  together  until  discharged  by  order 
of  the  court.  By  the  practice  of  the  courts,  however,  permis- 
sion is  frequently  giv^en  to  the  jury,  when  out  during  a  long 
adjournment  of  the  court,  or  for  the  night,  to  seal  up  the  ver- 
dict, when  agreed  upon,  and  then  to  separate;^  but  a  permis- 
sion to  the  jurors  to  seal  up  their  verdict  and  separate,  does 
not  dispense  with  their  personal  attendance  in  court  when 

78  111.  347;  Walcott  v.  Heart,  78  111.  »  Citij  v.  Looney,  159  111.  471;  Shaiv 

433;  Skelley  v.   Boland,  78  111.  438;  v.  Cavip,  160  111.  425. 

McMillen  v.  Lee,  78  111.  443;  Straus  ^Rev.  Stat.  (1893)  1078;  Rev.  Stat. 

V.    Minzeftheimer,  78   111.    492;    Ry.  (1895)  1162;  2  Starr  &  Curtis   1817; 

Co.  V.  Wilson,  56  111.  App.  364;  R.  R.  see  Hovey  v.  Thompson,  37  111.  538; 

Co.  V.  Wheeler,  149  111.  525;  Ellis  v.  Rau-son  v.  Curtis,  19  111.  456;  Ilat- 

People,  159  111.  337.  field  v.  Cheaney,  76  111  488;  Avery  v. 

^Sargent  v.  Roberts,  1  Pick.  337;  3Ioore,  133  111.  74;  O'Neall  v.   Cal- 

Crabtree  v,  Hagenbaugh,  23  111.  349.  houn.  67  111.  219. 

^  Lee  V.  Quirk,  20  m.  392;  see  Mar-  ^  White  v.   Martin,   2  Scam.    70; 

tin  V.  Morelock,  31  111.  485.  Rigg  v.  Cook,  4  Gilra.  336;  R.  R.  Co. 


812  TRIAL    AND    VERDICT. 

the  verdict  is  opened;  and  if  any  of  them  then  dissent,  the 
verdict  can  not  be  received.' 

If  the  jurors  are  wholly  unable  to  agree  upon  a  verdict,  the 
court,  in  its  discretion,  may  discharge  them. 

Delivery  of  the  verdict,  etc. — When  the  jurors  have 
agreed  upon  their  verdict,  they  return  with  it  at  once  into  the 
court,  if  then  open;  otherwise  as  soon  as  it  is  open.  If  by  per- 
mission of  the  court  they  have  separated  after  having  agreed, 
the  verdict  should  be  in  writing,  and  sealed  up.  The  verdict, 
if  in  writing,  is  then  read  aloud  by  the  clerk,  or  judge,  who 
asks  the  jurors  if  they  affirm  the  same;  for  a  verdict  is 
not  valid  and  final  until  pronounced  and  recorded  in  open 
court;  and  before  it  is  thus  affirmed,  the  jury  may  vary  the 
verdict  as  first  returned.''  After  the  verdict  is  received,  the 
jury  may  he  jwlled,  at  the  request  of  the  party  against  whom 
it  is  rendered — that  is,  the  jurors  may  be  asked,  individually, 
whether  they  agree  to  the  verdict  as  it  is  read;  and  then  any 
juror  may  disagree  thereto;'  but  when  they  have  given  their 
verdict,  and  have  affirmed  it,  it  is  beyond  recall,  and  they  are 
discharged  from  the  case.  No  juror  can  then  be  allowed  to 
say  that  he  will  not  agree  to  it,*  or  that  he  agreed  to  it  upon 
mistaken  principles;^  nor  can  the  affidavit  of  a  juror  be  read, 
to  impeach  the  verdict.* 

V.   Faitz,  19  111.  App.    88;   City  v.  Cal.  483;  3  Bla.  Com.  377;  AsMon  v. 

Cockrum,  59  111.  App.  540.  TouJmj,  131  Mass.  26. 

'  Rigg\.  Coofc,  4  Gilm.  336;  Mar-  ^  Parrott  \.  Thacher,  7  Pick.  426; 

tin  V.  Mordock,  32  III.  485;  see  Reins  State  v.  Austin,  6  Wis.  205;  R.  B. 

V.  People,  30  111.  256;  Pierce  v.  Has-  Co.  v.  Faitz,  19  Bradw.  85. 

broiick.  49  111.  23;  Poivell  v.  Feeley,  *  Apthorp  v.  Backus,  1  Kirb.  416; 

49  111.  143;  Paige  v.  O'Neal,  12  Cal.  Howe's  Pr.  258;  Suver  v.  O'Riley,  80 

483;  3  Bla.    Com.    377;    Ashton    v.  111.  104. 

Toiihey,  131  Mass.  26;  R.  R.  Co.  v.  ^  Bridge  v.  Eggleston,  14  Mass.  245; 

Faitz,  19  Bradw.  85.  Nelson  v.  Bowen,  15  Bradw.  477. 

'^  Root  w .  Sheru-ood,  6    Johns.  68;  ^  Martin  \.  Elirenf els,  24  111.  187; 

BlacMey  v.  Sheldon,   7  Johns.    32;  Allison  v.  People,  45  111.  37;  Boetge 

Reitenv.Ludwick,  SI  Fenn.  131;  Mc-  v.  Landa,   22    Tex.  105;   R.   R.    v. 

KeanY.  Paschal,  15  Tex.  37;  Martin  Dana,  1  Gray  83;  U.  S.  v.  Reid,  12 

V.  3Iorelock,  32111.  485;  see  Pierce  v.  How.  (U.  S.)  361;   Reins  v.  People, 

Hasbrouck,  49  111.  23;  Powell  v.  Fee-  30  111.  256;  Roy  v.  Goings,   112  111. 

ley,  49  lU.  143;  Paige  v.  O'Neal,  12  656. 


TEIAL   AND   YEEDICT.  843 

Yerdicts. — Verdicts  are  of  two  kinds  :  general  and  special. 
The  former  are  where  the  jury  finds  that  the  defendant 
is  "  guilty,"  or  "  not  guilty;"  "  did  promise,"  or  ''  did  not 
promise,"  etc.  The  latter  are  where  special  facts  are  found, 
and  the  questions  of  law  thereupon  referred  to  the  court. 
These,  in  Illinois,  have  heretofore  seldom  occurred. 

General  verdicts. — General  verdicts  ought  to  be  framed  in 
the  words  of  the  issue  tendered; '  but  if  they  are  informal  the 
court  will  put  them  in  form  according  to  the  justice  of  the 
case,  before  they  are  affirmed,  if  the  point  in  issue  can  be  col- 
lected from  the  finding; "  or  the  court  may  send  the  jury  back 
to  put  the  verdict  in  proper  form." 

A  verdict  should  find  the  whole  issue  tried/  and  nothing- 
more.  If  the  jury  should  find  facts  not  submitted  to  them, 
besides  finding  the  issue,  such  improper  finding  will  be  re- 
jected as  surplusage;  ^  as  if  they  should  undertake  to  find  costs 
for  either  party,  with  which  subject  they  have  nothing  to  do,' 

The  party  in  whose  favor  the  verdict  is  rendered  should  see 
that  it  is  in  regular  form;  and  this  is  usually  done  at  the  bar, 
before  the  verdict  is  affirmed. 

The  statute  of  Illinois  provides  that  "whenever  an  entire 
verdict  shall  be  given  on  several  counts,  the  same  shall  not  be 
set  aside  or  reversed  on  the  ground  of  any  defective  count,  if 
one  or  more  of  the  counts  in  the  declaration  be  sufficient  to 
sustain  the  verdict."  ^ 

1  GertHsh  v.  Train,   3  Pick.  124;  189;    Pekin  v.    Wi7iM,   77  111.    56; 

Harding  v.  Brooks,  5  Pick,  244;  see  Clapp  v.  Martin,   33  111.   App.  438. 

Alwood  V.    3Iansfield,   33    111.   452;  ^  Reed    v.   Thayer,    9     Ind.    157: 

Broivn  v.  Keller,  38  111.  63;  Parker  Smith  v.  Williams,  23  111.  357;  Mar- 

V.  Fisher,   39   111.    164;  Harding  v.  tin  v.  Morelock,  32  111.  485. 

Strong,  42  111.  148;  Jarrard\.  Har-  <Salk.472;  Clark  \.  Lamb,  6  Pick. 

per,  42  111.  457;   Bates  v.  Williams,  512. 

43  111.  494;   Barker  v.  Young,  44  lU.  '  Osgood  v.  McConndl,  32  El.  75; 

42;  James  v.  Morey,  44  111.  352;   Un-  O'Brien  v.  Palmer,  49  111.  72. 

derwood  v.  White,  45  111.  437.  ^Lincoln  y,  Hapgood,  11  Mass.  358. 

«  Osgood  V.  McConnell,  32  111.  75;  '  Rev.  Stat.  (1893)  1078;  Rev.  Stat. 

Porter  v.Rummery, \OMass.  G4;  Chit-  (1895)  1161;  2  Starr  &  Curtis   1822; 

tenden  v.  Etwis,  48  111.  52;  O'Brien  Bond  v.    Dustin,    112   U.    S.    604; 

V.  Palmer,  49111.  12;  Lis.  Co.  v.  Van-  Santa  v.  Frank,  113  U.  S.  339;  7ns. 
cZwzor,  49111.  489:  Boyntonx.  Phelps,   '  Co.  v.  Whitehill,  25  111.  466;  Barry 

52  111.  210;  Faidk  v.  Kellimis,  54  111.  v.  Mackey,  66  111.  104. 


844  TKIAL   AND    VERDICT. 

Where  two  suits  between  the  same  parties  are  consolidated, 
but  one  verdict  is  necessary.' 

Where  the  verdict  of  a  jury  is  not  in  form,  mere  irregularity 
in  the  proceedings  of  the  court  in  having  the  same  put  in  form, 
as  in  oral  remarks  and  instructions,  which  could  not  have 
affected  the  finding  of  the  jury  except  as  to  the  mere  form  of 
the  verdict,  will  not  be  sufficient  error  to  reverse.'^ 

A  verdict  may  be  received  on  Sunday.' 

Special  verdict — Special  fludinss. — The  act  of  1887*  pro- 
vides, 

1.  That  in  all  trials  by  jury  in  civil  proceedings  in  this  state, 
in  courts  of  record,  the  jury  may  render,  in  their  discretion, 
either  a  general  or  a  special  verdict;  and  in  any  case  in  which 
they  render  a  general  verdict  they  may  be  required  by  the 
court,  and  must  be  so  required  on  request  of  any  party  to  the 
action,  to  find  specially  upon  any  material  question  or  ques- 
tions of  fact  which  shall  be  stated  to  them  in  writing,  which 
questions  of  fact  shall  be  submitted  by  the  party  requesting 
the  same  to  the  adverse  party  before  the  commencement  of 
the  argument  to  the  jury. 

2.  Submitting  or  refusing  to  submit  a  question  of  fact  to 
the  jury  when  requested  by  a  party  as  provided  by  the  first 
section  hereof,  may  be  excepted  to  and  be  reviewed  on  appeal 
or  writ  of  error  as  a  ruling  on  a  question  of  law. 

3.  When  the  special  finding  of  fact  is  inconsistent  with  the 
D-eneral  verdict,  the  former  shall  control  the  latter  and  the 
court  may  render  judgment  accordingly. 

Prior  to  1872  the  statute  of  Illinois  did  not  provide  for 
special  verdicts.  By  an  amendment  to  the  Practice  Act 
enacted  in  1872  it  w^as  provided  that  a  trial  court  might  in  its 
discretion  require  the  jury,  on  request  of  either  party,  to  ren- 
der a  special  verdict,  and  the  decision  of  the  court  in  ordering 
or  refusing  to  order  a  special  verdict  was  held  to  be  not  review- 
able in  a  court  of  appeal.' 

»  Miller  v.  McMcmis,  57  111.  120.  «3  Starr  &  Curtis  996;  Eev.  Stat. 

2  lirown  V.  Rounsavel,  78  111.  589;  (1895)  1162;  Rev.  Stat.  (1893)  1078. 

Poppers  V.  Bank,  10  Bradw.  531.  ^  Kane  v.  Footh,  70  111.  587;  Barnes 

^R.  R.  Co.  V.  Horan,  23  111.  App.  v.  Hamon,  71  111.  609;  R.  R.  Co,  v. 

259.  Maxfield,  72  111.  95. 


TRIAL  AND    VERDICT.  845 

This  provision  remained  in  force  until  repealed  in  187-4. 

The  present  statute  differs  from  the  former  chiefly  in  that 
it  makes  it  mandatory  upon  the  court  to  require  and  upon  the 
jury  to  make  a  special  finding  upon  any  material  question 
submitted  upon  the  request  of  any  party  to  the  action. 

The  question  of  fact  upon  which  special  findings  are  asked 
must,  under  the  statute,  be  submitted  to  the  adverse  party  before 
the  commencement  of  the  argument  to  the  jury,  and  if  not  sub- 
mitted until  after  that  time  the  interrogatories  will  be  rejected.' 

The  special  findings  called  for  should  be  reasonable  in  num- 
ber," and  must  be  based  upon  the  grounds  upon  which  a 
recovery  is  asked.' 

A  question  submitted  to  a  jury  for  a  special  finding  should 
be  single,  direct,  plain,  and  material  to  the  case,  and  such  as 
calls  for  a  direct  answer.  Such  questions  can  not  seek  the 
jury's  conclusion  upon  a  specified,  partial  view  of  the  facts.' 

The  only  questions  material  under  the  statute  are  such  as,  if 
answered  as  the  party  offering  them  desires,  will  make  a  ver- 
dict for  the  other  party  inconsistent.^ 

The  general  verdict  controls  under  the  statute,  where  the 
special  finding  can  upon  any  hypothesis  be  reconciled  with  it; " 
but  where  the  general  verdict  is  inconsistent  and  irreconcil- 
able with  the  facts  specially  found,  the  special  finding  con- 
trols, and  the  general  verdict  will  be  set  aside.'  The  incon- 
sistency must  be  an  irreconcilable  inconsistency,  incapable  of 
removal  by  any  evidence  admissible  under  the  issue,"  and  in 
determining  whether  there  is  such  an  inconsistency  all  reason- 
able presum^Dtions  are  to  be  indulged  in  favor  of  the  verdict 

^McMahon  v.  Sankey,  133  lU.  636;  123;  Ebsery  v.  Ry.  Co.,  61  lU.  App. 

B.  R.  Co.  V.  Ellis,  58  111.  App.  110.  265. 

^R.  R.  Co.  V.  Bouck,  33  111.  App.  «  Pdhlman  v.  Taylor,  75  111.  629; 

123;  R.  R.  Co.  v.  Kid,  29  111.  App.  Smith  v.    McCarthy,    33    111.    App. 

353;  Ry.  Co.  v.  Southworth,  32  111.  176;  R.  R.  Co.  v.  Speer,  156  111.  244; 

App.  307.  Ry.    Co.   v.   Bacon,    104     Ind.    88; 

8  Coal  Co.  V,  3Iachl,  130  lU.  551.  Starrett  v.  Gault,  62  111.  App.  209. 

*3Ianf.   Co,  v.  Wilson,  152  111.  10.  ■>  Ry.  Co.  v.  Britz,  72  lU.  256;  Ry. 

5  Fortune   v.  Jones,  30   111,  App.  Co.  v.  Dunleavy,  129  111.  132. 

116;  Ry.   Co.  v.  Dunleavy,  129  111,  ^  Ry.  Co.  v.  Dunleavy.  129  111.  132; 

132;   Ry.  Co.  v.  Bouck,  33  111.  App.  R.  R.  Co.  v.  Speer,  156  111.  244. 


846  TKIAL   AND    VERDICT. 

and   notliing  is  to  be  presumed  in  favor  of   the  special  find- 
ings/ 

The  various  pleadings  are  to  be  construed,  where  it  reason- 
ably can  be  done,  to  support  the  general  verdict.''  A  special 
finding  under  the  statute  is  not  a  special  verdict;  a  special  ver- 
dict can  not  be  found  where  there  is  a  general  verdict,  while  a 
special  finding  can  be  required  only  where  such  a  verdict  is 
rendered.^  To  have  any  effect  upon  a  general  verdict  the 
answer  to  a  special  question  must  relate  not  to  evidentiary 
facts,  but  to  those  ultimate  facts  upon  which  the  rights  of  the 
parties  directly  depend." 

Where  a  party  asks  for  a  special  finding  of  fact  by  the  jury 
and  they  returi;  an  answer  to  the  question,  if  he  thinks  such 
finding  is  not  supported  by  the  evidence  he  should  ask  for  a 
new  trial,  assigning  such  finding  as  a  reason.* 

The  mere  failure  of  the  jury  to  answer  a  question  submitted 
to  them,  or  the  return  by  them  of  an  irresponsive  or  unintelli- 
gible answer,  will  not  entitle  the  party  at  whose  instance  the 
question  was  submitted,  to  have  judgment  in  his  favor.  That 
is  required  by  the  statute  only  when  the  special  finding  is  in- 
consistent with  the  general  verdict.® 

The  failure  of  the  jury  to  answer,  or  their  returning  an  in- 
sufficient answer,  ordinarily,  at  least,  will  not  entitle  the  party 
asking  the  same,  to  a  new  trial.  He  should  object  before  the 
jury  is  discharged,  so  that,  if  the  objection  be  well  taken,  the 
court  mav  send  them  back  to  perfect  their  verdict.'' 

Trial  by  court — Propositions  of  law. — Section  41  of  the 
Practice  Act  provides  that  "  in  all  cases  in  any  court  of  record 
of  this  state,  if  both  parties  shall  agree,  both  matters  of  law 
and  fact  may  be  tried  by  the  court;  and  upon  such  trial  either 
part}'"  may,  within  such  time  as  the  court  may  require,  submit 
to  the  court  written  propositions  to  be  held  as  law  in  the  de- 
cision of  the  case,  upon  which  the  court  shall  write  '  refused,' 

^Ry.  Co.  V.  Dunleavy,  129  111.  132;  *  Society  v.  Kalhoun,  61   111.  App. 

R.  R.   Co.    V.    Siiear,   156    111.   244;  266. 

Starrett  v.  Gault,  62  111.  App.  209.  ^  Avery  v.  Moore,  133  111.  74. 

^R.  R.  Co.  V.  Ooyette,  32  111.  App.  ^R.  R.  Co.  v.  Goyette,  133  111.  21. 

574.  ''Ibid.;   Ins.   Co.   v.  Chetlain,   61 

"i??/.  Co.  V.  Dunleavy,  129  111.  182.  111.  App.  450. 


TKIAL   AND    VERDICT.  847 

or  '  held,'  as  he  shall  be  of  opinion  is  the  law,  or  modify  the 
same,  to  which  either  party  may  except,  as  to  other  opinions 
of  the  court." ' 

Where  a  part}^  wishes  to  preserve  the  ruling  of  the  court  on 
the  law  of  the  case,  he  should  request  the  court  to  pass  upon 
an  appropriate  proposition  for  that  purpose."  It  has  been  held 
that  in  cases  of  trials  before  the  court  without  a  jury,  where 
no  questions  arise  on  the  admission  or  exclusion  of  evi- 
dence, and  no  written  propositions  of  law  are  presented  or 
passed  upon  by  the  trial  court  hefore  or  at  the  time  of  render- 
ing judgment^  as  provided  by  the  foregoing  section,  no  ques- 
tion of  law  is  presented  by  the  record  for  the  determination 
of  the  court  of  appeal.' 

The  written  propositions  must  be  submitted  iipon  the  trial 
so  that  they  may  be  considered  by  the  court  in  the  decision  of 
the  case.* 

The  provision  of  the  statute  that  they  may  be  submitted 
"  within  such  time  as  the  court  may  require  "  does  not  author- 
ize an  order  of  the  court  giving  leave  to  submit  them  after  the 
court  has  rendered  a  final  decision,  and  erroneous  rulings 
upon  them  made  after  final  judgment  has  been  entered  will 
not  reverse  the  judgment.* 

Propositions  of  law  presented  to  the  court  should  state  the 
law  applicable  to  the  case  made  by  the  pleadings  and  proof, 
with  reasonable  accuracy,  and  should  be  based  upon  the  evi- 
dence; °  but  a  proposition  of  law,  unlike  an  instruction  to  the 
jury,  may  be  expressed  in  general  or  abstract  terms.'' 

When  there  is  nothing  in  the  case  calling  for  the  applica- 
tion of  the  proposition  it  may  be  refused.* 

AVhere  the  court  is  asked  to  hold  a  proposition  of  law  based 
on  a  hypothetical  case,  it  should  be  correctly  and  completely 
stated.     Where   the   proposition  is  correct  in  principle  upon 

»  2  Starr  &  Curtis  1808;  Rev.  Stat  *  Allman  v.  Lmnsden,  159  111.  219; 

(1893)  1076;  Rev.  Stat.  (1895)  1160.  Power  Co.  v.  Carlyle,  31  111.  Ap^x  325. 

«  Hobbsv.  Ferguson,  100  III.  282;  Ubid. 

Farwell  v.  Shove,  105  111.  61;   Ass'ti  «  Wadhams  v.  Sican,   109  111.  46; 

V.  Hall,  118  111.  169;  Bank  v.  Haskell,  CBannon  v.  Vigiis,  32  111.  App.  473. 

124  111.  587.  '  Vigus  v.  (JBannon,  118  111.  334. 

3  Alhnan  v.  Lumsden,  159  111.  219;  *  G'Bannon  v.  Vigus,  32  111.  App. 

Davies  v.  Phillips,  27  111.  App.  387.  478. 


848  TRIAL   AND    VEEDICT 

the  defendant's  hypothesis  and  based  on  evidence,  it  should 
not  be  refused  merely  because  the  plaintiff  has  evidence  tending 
to  avoid  and  destroy  its  application.' 

Where  there  is  evidence  on  the  part  of  the  plaintiff  he  should 
ask  a  declaration  of  the  law  on  his  theory  as  a  separate  prop- 
osition or  as  a  proposition  to  accompany  that  of  the  defend- 
ant/ 

The  court  may  properly  refuse  to  hold  a  proposition  em- 
braced in  substance  in  a  proposition  already  held.'  The  court 
is  not  bound  to  hold  every  proposition  of  law  asked;  it  is 
enough  that  those  held  state  every  essential  principle  of  law.* 

In  a  suit  where  the  evidence  is  conflicting,  a  proposition  that 
the  plaintiff  is  not  entitled  to  recover  is  a  proposition  of  fact, 
and  not  of  law,  and  will  therefore  properly  be  refused.* 

No.  393.    Form  of  submission  of  proposition  of  law. 

In  the court. 

Term,  18—. 

A.  B.  ) 

V.      >  Assumpsit. 

C.    D.  )      And  now  comes  the by his  attorney,  and  submits  the 

following  propositions,  and  asks  that  the  same  may  be  held  as  law  in  the 
decision  of  the  above  entitled  cause. 
1.     That,  etc. 

A.  B. ,  Attorney  for . 

'  Cothran  v.  Ellis,  107  111.  413.  *  Ins.  Co.  v.  Hick,  125  111.  361. 

2/6.  ^Knowles  v.  Knoivles,  12H  111.  110; 

^Knowles  v.  Knowles,  128  111.  110;  B.  R.  Co.  v.  Reich,  101  111.  157. 
CBannon  v.  Vigus,  33  111.  App.  473. 


GENERAL  INDEX. 

(See  Index  to  Forms,  post.) 


abatement- 
Pleas  TO  Jurisdiction  and  in  Abatement. 

Order  of  pleading 34 

Plea  in  abatement  defined 35 

Requisites  of  plea 35 

When  must  be  interposed 36 

Statute  relating  to 37 

Premature  action,  how  set  up 37 

Variance  between  summons  and  declaration 37 

Amendments  to  cure  matters  in  abatement 37 

Death  of  sole  plaintiff  or  defendant 38 

Death  of  sole  plaintiff 38 

Death  of  sole  defendant 39 

Several  parties — Death  of  part 39 

Death  of  all  on  one  side .' 40 

When  plea  must  be  verified s 40 

Judgment  upon  plea 40 

Plea  by  corporation 41 

To  jurisdiction 42 

Of  misnomer 44 

Of  non-joinder  of  defendant 47 

Of  non- joinder  of  plaintiff 48 

Of  misjoinder 49 

Another  action  pending 51 

Pleas  in,  in  attachment 384 

(For  forms  of  pleas  in,  see  Index  to  Forms,  Abatement,  forms 
of  pleas  in,  replications,  demurrer,  etc.,  post.) 

ACCOUNT— Action  of. 

When  the  action  lies 247 

By  whom  brought 249 

Compelling  account 249 

Process 250 

Form  of  declaration 250 

Trial — Judgment 250 

Auditors 251 

Hearing — Notice — Default 211 

54  (849) 


850  GENEEAL  INDEX. 

ACCOUNT -Conh'jiued. 

Oath— Witnesses 252 

Taking  account 253 

Testimony 253 

Compelling  witness  to  answer 252 

Adjusting  accounts — Report 253 

Judgment — Costs 253 

Production  of  books 253 

Consolidation  of  accounts 253 

Notice  of  hearing 253 

Continuance — Pleadings 254 

Accounting  before  justice 254 

Jurisdiction 254 

Power  of   auditors 255 

Action  on  book  accounts 255 

Appeal — Error 255 

Chancery  jurisdiction 255 

Suits  between  executors 256 

Limitations 256 

Demand 256 

Time  for  which  account  is  to  be  taken 256 

(For  forms  of  declaration,  pleas,  etc.,  see  Index  to  Forms,  post, 
Account— Action  of.) 
(See  observations  following  each  form.) 

ACCOUNT  STATED— 

Form  of  count  upon 77 

Form  of  plea  of ,  etc 202 

ACCORD  AND  SATISFACTION— 

Observations  upon  plea  of 199 

Form  of  plea  of 201 

Same 203 

Form  of  replication  to  pleas  of 202 

ACTIONS— 

Kind  of 3 

Forms  of 3 

Commencement  of 5 

Sounding  merely  in  damages 7 

ADDITIONAL  COUNTS— 

When  may  be  filed 27 

ADMINISTRATOR— 

Form  of  declaration  by,  in  assumpsit 90 

Same,  on  note 98 

Form  of  declaration  on  bond  of 461 

Observations  upon 462 

Form  of  declaration  by,  against  R.  R.  Co.  for  causing  death  of  tes- 
tator   647 


GENERAL   INDEX.  851 

ADmNISTRATRIX— 

Form  of  declaration  by,  in  case 647 

ADMISSION  TO  BAR— (^ee  Attorneys,  etc.) 
AFFIDAVITS— 

In  replevin 307 

In  attachment 877 

For  process  of  garnishment 393 

Of  merits 149 

Observations  upon 149 

Form  of 149 

Of  plaintiff's  claim 11 

Form  of 12 

Of  poor  person 18 

Form  of 19 

For  publication,  etc.,  in  distress  for  rent 621 

(For  forms  of,  see  Index  to  Forms,  post.  Affidavits,  forms  of.) 
AGREED  CASES— QUESTIONS  OF  LAW  CERTIFIED— 

Certified  to  supreme  or  appellate  courts 748 

Statutory  provisions  relating  to 748 

Must  not  be  feigned 748 

Llust  first  be  decided  in  trial  court 748 

Questions  of  law  certified 749 

Judges  may  certify 749 

Exceptions  to,  statutory  provisions,  etc 749 

What  certificate  must  contain 749 

Rules  of  supreme  court  relating  to 748 

(For  various  forms  relating  to,   see  Index    to  Forms,  j^ost, 
Agreed  Cases — Forms  in.) 
ALIAS  WRIT— (See  Process  for  Appearance.) 
AMENDMENTS— 

Reform  in  the  practice  by 706 

Amendments  generally 706 

Before  judgment 708 

Terms  upon  which  allowed 709 

Of  execution,  when  allowed 709 

Of  return  of  process,  etc 709 

Of  records,  etc 710 

Of  pleadings  in  vacation,  etc 712 

Of  process  out  of  term,  etc 712 

Of  errors  in  fact  after  judgment 712 

Writ  of  coram  nobis  abolished 712 

Other  statutory  provisions 713 

Changing  cause  from  law  to  chancery 713 

Judgment  after  term 714 

Bill  of  exceptions 714 

Defects  cured  by  pleading  to  merits 714 

Defects  cured  by  verdict 714 


852  GENERAL   INDEX. 

AMENDMENTS— Co?i/«med, 

Of  affidavit  in  attaclmient 379 

To  bill  of  exceptions 714-747 

To  cure  matters  in  abatement 37 

In  quo  warranto 578 

In  attachment 379 

ANIMALS— 

Form  of  count  for  hire  of 77 

Form  of  count  for  stabling 77 

Declaration  in  trespass  for  killing 350 

Owner  of,  liable  for  ti-espass  by 337 

Declaration  in  trespass  for  chasing  cattle 349 

Declaration  in  trespass  for  chasing  mare 349 

Declaration  in  case  for  killing  dog 351 

Declaration  in  case  for  keeping  vicious  dog 654 

Case  will  lie  for  overdriving,  etc 669 

Form  of  declaration  for 668 

ANOTHER  ACTION  PENDING— 

Form  of  plea 50 

Replication  to 50 

Observations  upon 50 

ANSWERS— 

Form  of  answer  of  garnishee 395 

Form  of  answer  to  petition  for  mandamus 553 

APPEAL— 

In  quo  warranto 576 

From  an  award 594 

From  judgment  by  confession 615 

In  trial  of  right  of  property 832 

APPEAL  BOND— 

Action  in  debt  upon 433 

Form  of  declaration  upon 445 

APPEARANCE— PROCESS  FOR— -See  Process  fob  Appearance. 

APPRENTICE— 

Action  by,  against  master 274 

Form  of  declaration 274 

Form  of  plea  to 281 

ARBITRATION  AND  AWARD— 

Nature  of  the  proceedmg,  etc 582 

Statutory  submission 582 

In  suits  pending 582 

Proceedings  by  arbitrators 583 

Oath  of  arbitrators 584 

Subpoenas  for  witnesses 585 

Swearing  witnesses 585 

The  hearing,  etc 585 


GENEEAL   INDEX.  853 

ARBITRATION  AND  AW AliB—ConUmied. 

The  award — Publication  of 586 

Prima  facie  award  is  considered  valid 588 

Either  party  not  complying 588 

Filing  of  award  in  court 588 

Judgment  upon  award , 588 

Enforcement  of  award 589 

Award,  when  set  aside 589 

For  fraud 590 

For  mistake 593 

Award  prepared  by  attorney  for  one  of  the  parties 593 

Signing  of  award 593 

When  court  may  correct  award 593 

When  motion  to  set  aside,  or  modify  must  be  made 594 

Error  and  appeals 594 

Compensation  of  arbitrators 594 

Fees  of  witnesses,  etc 594 

Arbitrators  may  be  compelled  to  act 595 

Record  of  reference,  etc 595 

In  controversies  not  in  suit 595 

Statutory  provisions  relating  to 595 

Construction  of  the  statute 595 

Proceedings  under  section  16 596 

Award  under  section  16 596 

Common  law  submissions 596 

Differ  from  statutory  submissions 596 

How  submitted 597 

Revocation  of  submission 598 

Who  may  be  arbitrator 599 

General  iwwers  and  duties  of  arbitrators 600 

Recommitting  an  award 601 

Form  of  plea  of 204 

Form  of  replication  to  plea 204 

Same,  denying  award 205 

Same,  to  plea  of  award 205 

Form,  rejoinder  to  replication  to  a  plea  of  award 205 

(For  forms  relating  to,  see  Index  to  Forms,  post,  Arbitration 
AND  Award.) 
ARBITRATION  BOND— 

Plea  to  declaration  upon  in  debt 501 

ARREST  OF  JUDGMENT— 

When  it  will  be  arrested 733 

When  it  will  not  be 733 

Time  and  manner  in  moving  in  arrest 736 

ASSAULT  AND  BATTERY— 

Trespass  will  lie  for 323-325 

Form  of  declaration  for 344^5_6 


854  GENERAL   INDEX. 

ASSAULT  AND  BATTERY- Continued. 

Observations  upon 345 

(See  Trespass  and  forms  relating  to,  Index  to  Forms,  post.) 
ASSUMPSIT— Action  of— 

Nature  of  the  action,  etc 70 

Express  assumpsit 70 

Implied  assumpsit 70 

Special  assumpsit 71 

Where  it  lies,  etc 71 

Consideration  of  promises 74 

Privity  of  contract 75 

Commencement  of  the  action 75 

Declarations  in 75 

Indebitatus'  assumpsit 76 

Money  had  and  received 81 

Money  paid  and  expended 83 

Work  and  materials 84 

Quantum  meruit 84 

Quantum  meruit  count 85 

Quantum  valebant  count 85 

Common  counts 86 

Special  counts 91 

Declaration  on  bills  of  exchange 113 

Declaration  on  warranties 118 

By  landlord  v.  tenant 121 

On  promises  to  marry 123 

Against  bailees 127 

Against  common  carriers 129 

On  policies  of  insurance 137 

Miscellaneous  declarations 143 

(See  observations  following  forms.) 

(For  forms  of  declarations,  pleas  in  abatement,  replications, 
pleas  in   bar,  rejoinders,  demurrers  and  other  forms  con- 
nected with  the  action,  see  Index  to  Forms,  post,  Assump- 
sit, Action  of,  and  Defenses  to.) 
ASSUMPSIT— Defenses  to— 

The  General  Issue 146 

Observations  upon. 146 

Form  of  plea  of 148 

Affidavit  of  merits 149 

Form  of 149 

General  issue,  with  notice 150 

Form  of  notice  of  set-off 151 

Plea  of  Statute  of  Limitations 152 

When  begins  to  run 154 

New  promise, 155 

On  foreclosure 157 


GENERAL   INDEX.  855 

ASS  UMFSIT— Continued. 

Form  of 157 

"      "  replication  to 158-159 

"     "  rejoinder 159 

Plea  of  Infancy 160 

Observations  upon 160 

Form  of 163 

"     "  replication  to 163-164 

"     "  rejoinder  to 164 

Plea  of  Statute  of  Frauds 164 

Collateral  and  original  undertakings 166 

Form  of 169 

"     "  replication  to 169-170 

Plea  of  Fraud 170 

Observations  upon 170 

Diligence  required  of  maker  of  note 173 

"  "       of  assignee  of  note 173 

Forms  of 174,  175 

"        "replication   to 175 

Plea  of  Usury 176 

Observations  upon 177 

Form  of 183 

"      "  replication  to 184 

Plea  of  Set-off 183 

Observations  upon 183 

No  dismissal  after 189 

Form  of 189 

"      "  replication  to 190 

Plea  of  Release 191 

Observations  upon 191 

Form  of 194 

"      "  replication  to 195 

Plea  of  Payment 195 

Observations  upon 195 

Form  of 197 

"      "  replication 198 

Plea  of  Accord  and  Satisfaction 199 

Obsei-vations  upon 199 

Form  of 201,  202 

"      "  replications  to 202,  203 

Plea  of  Arbitrament  and  Award 203 

Observations  upon 203 

Form  of 204 

"      "  replication  to 204,  205 

Plea  of  Former  Adjudication 205 

Observations  upon 205 

Form  of  plea  of  judgment  recovered 208 

"      "  replication  to 209 


856  GENERAL   INDEX. 

ASSUMTSIT— Continued. 

Plea  of  Tender 210 

Observations  upon , 210 

Form  of  plea  of 213 

"     "  replications  to 215,  216 

Plea  by  Surety 216 

Further  time  given  to  principal 216 

Notice  by  surety  to  prosecute , 219 

Death  of  principal — Diligence  against  estate 221 

Form  of  pleas 222 

Plea  of  Breach  op  Warranty 223 

Observations  upon 223 

Form  of  plea 225 

Plea  of  Want  or  Failure  of  Consideration 226 

Observations  upon 226 

Form  of  pleas 227,228,  229,  230,  231,  233 

Plea  of  Illegal  Consideration 234 

Observations   upon 234 

Form  of  pleas 235 

"      "  replications  to 235 

Plea  of  Discharge  in  Bankruptcy 236 

Observations  upon 236 

Form  of  plea 238 

Plea  Denying  Execution  of  Written  Instrument 239 

Observation  upon 289 

Form  of  plea 239 

Plea  Denying  Joint  Liability 241 

Observations  upon 241 

Form  of  pleas 241 

Plea  of  Nul  Tiel  CorporatiC)N 242 

Observations  upon 242 

Form  of  plea 244 

Plea  of  Puis  Darrein  Continuance 244 

Observation  upon 244 

Form  of  plea 247 

ATTACHMENT— Proceedings  in— 

Nature  of  proceedings,  etc 373 

Where  it  lies,  etc 376 

Commencement  of  Proceedings  in 377 

By  affidavit,  etc 377 

Forms  of  affidavit , 377 

Traversing  affidavit 378 

Amendments , 379 

Where  suit  to  be  brought 379 

Plaintiff  to  give  bond 380 

Against  joint  debtors , 380 

Execution  of  the  writ,  etc 381 

The  declaration,  etc 382 


GENERAL   INDEX.  857 

A^:TACn^^TENT— Continued. 

Garnishees,  etc 382 

Notice  by  publication 383 

Default 38?. 

Continuance  for  service 383 

Defenses  to  the  Proceeding 384 

Plea  in  abatement  traversing  affidavit 384 

Practice  and  Pleadings  in 385 

Forthcoming  bonds,  etc 386 

Bond,  etc. ,  for  return  of  property 386 

Interpleader  by  Third  Party 387 

Statute  relating  to 834 

Obsei-vations  upon •. 834 

Form  of  interpleader 388 

Attachment  in  Aid  of  Suit  Pending 388 

Form  of  affidavit  for 389 

Service 390 

Judgment  where  there  is  no  personal  service 390 

Sale  of  property  on  execution 391 

Division  of  proceeds,  etc 391 

By  sheriff,  etc 398 

Proceeds  brought  into  court,  etc 393 

{See  Garnishment,  2^08 f.) 

Attachment  of  Water  Craft 403 

Lien  upon,  etc 403 

For  what  lien  is  given 403 

Lien  on  goods  for  freight 404 

Limitation  of  proceedings 404 

Petition  to  Enforce  Lien 404 

Bond  to  be  filed,  etc 404 

Notice  by  publication 405 

Intervening  creditors 4C6 

Bonding  vessel '. 406 

Appraisement,  restitution,  sale,  etc 406 

Answer,  affidavit  of  merits,  default,  etc 406 

Judgments,  decree  of  sale 407 

Amendments,  etc 407 

Distribution,  etc 407 

Jurisdiction 407 

Prior  liens 408 

(See  observations  following  each  precedent.) 

(For  forms  in  Attachment,  and  Attachment  of  Water  Craft,  see 
Attachment,  proceedings  in,  etc.;  Index  to  Forms,  post.) 
ATTACHMENT  BOND— 

Declaration  upon 466 

Observations  upon 467 

ATTORNEYS  AND  COUNSELORS  AT  LAW— 

Form  of  count  for  services 78 


858  GENERAL    INDEX. 

ATTORNEYS  AND  COUNSELORS  AT  'LAW— Continued. 

Form  of  declaration  against,  for  negligence,  etc 670 

Observations  upon 671 

Nature  of  the  office,  etc 762 

How  admitted 762 

Qualifications 763 

Authority  of 764 

It  can  not  be  delegated 766 

Retainer,  etc 767 

Agreements  made  by,  for  clients,  etc 767 

Admissions  by,  etc 768 

Tei-mination  of  employment 768 

Duties  and  Liabilities 768 

Duty  to  court 769 

Ought  not  to  be  witness  for  client,  etc 769 

Acting  in  another  capacity 770 

Can  not  act  on  opposite  sides 770 

Liability  to  third  persons 771 

Dealings  between  attorney  and  client 771 

Assigned  by  court  to  defend  prisoners 772 

Eights  and  Privileges 773 

Privileged  communications 773 

Fees,  etc 774 

On  confession  of  judgment 610 

Lien  of,  etc 774 

Change  of  attorney 775 

AUDITORS— 

{See  Account— Action  of.) 

AVOWRY— 

Form  of,  for  rent  in  replevin 818 

Form  of  plea  to,  denying  demise 818 

Form,  same,  no  rent  in  arrear 819 

AWARD— (.^ee  Arbitration  and  Award.) 

Debt  will  lie  upon 427 

Form  of  declaration  on 438 

Form  of  plea  of  award 204 

Form  of  plea  of  no  award 501 

Form  of  replication  to  plea  of  award 205 

Form  of  replication  to  plea  of  arbitrament,  denying  award 204 

(See  observations  following  forms.) 

BAILEES— 

Form  of  declaration  against  hirer  of  horse,  etc 127 

Same,  overloading,  etc 668 

BAIL  IN  CIVIL  CASES— 

When  required,  etc 7 

In  actions  ex  contractu 7 

In  actions  sounding  merely  in  damages. 7 


GENERAL    INDEX.  859 

BAIL  IN  CIVIL  CASES— Continued. 

Plaintiff  to  give  bond 8 

Bail  bond,  etc 8 

(For  forms  in  Bail  in  Civil  Cases,  see  Index  to  Forms,  2iost, 
Bail  in  Civil  Cases.) 
BANK  CHECK— 

Form  of  declaration  on Ill 

BANKRUPTCY— PLEA  OF  DISCHARGE  IN— 

(See  Discharge  in  Bankruptcy.) 
BILLS  OF  EXCEPTIONS— 

Objections  to  decisions  of  court  preserved  by,  etc 737 

When  exceptions  must  be  taken 739 

Signing,  etc .,  of  bill  of,  etc 739 

Death  of  judge  before  signing 741 

What  the  bill  should  contain 741 

When  necessary 741 

Form  of,  to  decision  of  the  court,  on  evidence,  etc 746 

Form  of,  on  refusal  to  grant  continuance 747 

Amendment  of 71 4-747 

BILLS  OF    EXCHANGE— 

(See  forms  of  declarations  upon.  Index  to  Forms,  post,  As- 
sumpsit, Action  of,  and  Debt.) 

BILL  OF  PARTICULARS 81 

BOARD  AND  LODGING— 

Form  of  count  for,  in  assumpsit 77 

bond- 
Administrators- 

Declaration  upon 461 

Observations  upon 468 

Attachment 380 

Forthcoming  bond  in 386 

Arbitration — 

Plea  to  declaration  upon  arbitration  bond 501 

Capias  Ad  Res. 

Of  plaintiff 8 

Form  of 10 

Of  defendant 8 

Form  of 10 

Guardian — 

Declaration  on  bond  of 457-459 

Observations  upon 457-460 

Injunction — 

Declaration  on  bond 469 

Observations  upon 470 

Replevin— 

Declarations  on  bond 448-450 

Observations  upon 450 


860  GENERAL   INDEX. 

BOND — Continued. 

Plea  to  declaration 503 

Observations  upon 503 

Sheriff — 

Declaration  on  bond  of 453 

Observations  upon 454 

BOND  FOR  COSTS— 

{See  Security  for  Costs.) 

BOND— 

Action  in  debt  for  breach  of 431 

BOOKS  OF  ACCOUNT— 
(^ee  Evidence.) 

BKEACH— 

Of  promise  to  marry 123 

Form  of  declaration  for 123 

Observations  upon 124 

Of  Warranty — 

Plea  of,  to  declaration  on  note. 225 

Same 228 

Same 229 

Same,  of  title  to  land 226 

BURDEN  OF  PROOF— 

Under  plea  in  replevin  of  property  in  defendant  or  stranger 313 

CASE,  ACTION  ON  THE— 

Nature  of  the  Action,  etc 626 

Distinction  between  trespass  and  trespass  on  the  case  abolished ....  626 
"Where  the  action  will  lie,  etc 626 

Negligence 631 

Commencement  of  the  action. 633 

Declaration  in 633 

Trespass  and  trover  may  be  joined  with 633 

In  what  county  railroad  company  may  be  sued 637 

Action  for  Slander,  etc 678 

When  will  lie 678 

Malice  essential  to  action 681 

Declaration  for  Slander  and  Libel 685 

Reqviisites  of 685 

The  statement 685 

The  colloquium 687 

The  innuendoes 687 

Slanderous  words  in  foreign  language 690-694 

Defenses  to  the  Action 698 

Pleas  in  bar 699 

Special  pleas  generally 699 

General  issue  in  actions  for  slander  or  libel 700 

Damages 700 

Special  pleas  in  actions  for  slander  and  libel 703 


GENERAL   INDEX.  861 

CASE,  ACTION  ON  TB.E—Conti7med. 

Justification 703 

De  injuria , 704 

(See  observations  following  each  precedent.) 
(For  forms  of  declarations,  pleas,  etc.,  see  Index  to  Forms, 
j)os^, Case— Action  on  the.) 
CAPIAS  AD  RESPONDENDUM— 

In  what  cases  may  issue 7 

Actions  sounding  merely  in  damages . .    7 

Plaintiff  to  give  bond 8 

Bail  bond 8 

Forms  of  affidavits  for 8-9 

Observations  on 9 

Form  of  order  for 10 

Form  of  plaintiff's  bond,  etc 10 

Form  of  defendant's  bond,  etc '    11 

In  action  against  drover,  etc 480 

CARRIERS— (See  Common  Carriers.) 
CATTLE— (See  Animals.) 
CERTIFICATE  OF  LEVY— 

Of  writ  of  attachment 381 

CERTIORARI— 

The  Common  Law  Writ 555 

Its  nature  and  purposes 555 

The  Statutory  Writ 558 

Its  nature  and  purposes 558 

T'HE  Petition,  etc 560 

Requisites  of,  etc 560 

Form  of  petition  for,  etc 563 

(See  observations  following  forms,  etc.) 
CHANGE  OF  VENUE— 

In  civil  cases , . . . .  776 

When  the  same  may  be  had ! 776 

Interest  or  prejudice  of  judge 776 

Prejudice,  etc. ,  of  inhabitants 776 

Notice  of  ai>plication,  etc 777 

Tlie  petition  for,  etc 777 

When  application  to  be  made 778 

By  whom  made 779 

By  part  of  plaintiffs  or  defendants 779 

Order  granting  in  vacation 779 

Terms  and  conditions  of,  etc 779 

Costs  of  the  change 780 

When  to  be  paid 780 

Transcript,  papers,  etc 780 

To  what  court  sent,  etc 780 

Docketing  cause,  etc 781 


SG2  GENEKAL    INDEX. 

CHANGE  OF  YE^VE— Continued. 

Irregularities  waived,  etc 781 

In  criminal  cases 781 

To  wliat  judge 782 

(For  forms  of  notice,  petition,  etc.,  see  Index  TO  FOKMS,  post, 
Change  of  Venue.  ) 

CITY— 

Declaration  in  case  against,  for  permitting  sidewalk  to  remain  out 

of  repair 649 

Observations  upon 649 

COGNOVIT— (S'ee  Confession  of  Judgment.) 
COMMENCEMENT  OF  AN  ACTION— 

The  praecipe 5 

Affidavit  of  plaintiff's  claim 11 

Parties  to  an  action 19 

Suits  for  use  of  another 20 

Against  insane  person 21 

Against  infant 21 

Copy  of  account  sued  on 28 

(See  Security  for  Costs— Bail  in  Civil  Cases— Declara- 
tion--Process  for  Appearance). 
COMMON  CAKRIER— 

Form  of  declaration  for  loss  of  goods,  etc 129 

Form,  same,  against  captain  of  ship,  etc 130 

Duties  and  liabilities  of,  etc 132 

Foi-m  against  railroad  company  for  not  delivering  goods,  etc 671 

Form  against  proprietor  of  stage  coach 653 

COMMON  COUNTS— 

Form  of 76-86 

Form  of  consolidated 78 

COMPARATIVE  NEGLIGENCE— 

Doctrine  abolished  in  Illinois .' 63 

(See  Case.) 

CONFESSION  OF  JUDGMENT— 

In  Illinois 606 

Practice 606 

The  declaration 606 

Warrant  of  attorney 606 

Form  of  proof  of  warrant  of  attorney 607 

The  cognovit 607 

Form  of  cognovit 608 

In  term  time 608 

In  vacation — Power  of  clerk 609 

When  may  be  taken  before  maturity 610 

Attorney  fees 610 

Confession  by  a  partner 610 


GENERAL    INDEX.  863 

CONFESSION  OF  JUDGMENT— Confimted. 

Confession  by  a  corporation 611 

by  an  infant 611 

In  cases  of  tort 611 

Sureties 611 

Vacation  of  judgment 613 

Limitations 614 

Power  to  confess  in  lease 614 

In  forcible  detainer 615 

Appeal 615 

Vacation,  what  is 615 

CONSIDEEATION— 

Must  be  on  promises 74 

Want  of,  for  given  note 227 

Form  of  plea  of  total  failure  of,  for  given  note 228 

Form,  same,  etc 229 

Form,  plea  given  for  fees,  etc 230 

Form  in  su  t  by  assignee,  etc 231 

Form,  partial  failure  of 233 

Form  of,  in  action  of  debt 493 

(See  observations,  preceding  and  following  precedents.) 
{See  Illegal  Consideration.) 

continuance- 
How  and  when  applied  for 716 

For  absence  of  witnesses,  etc. ...   7j 6 

Form  of  affidavit  for,  etc 717 

By  reason  of  amendments 703 

For  want  of  declaration,  etc 722 

Defendant  in  military  service 723 

Pai'ty  or  counsel  in  legislature 723 

On  remanding  cause  from  supreme  or  appellate  courts 723 

Terms  may  be  imposed,  etc 793 

By  operation  of  law 794 

In  attachment  for  want  of  service 383 

In  trial  of  right  of  property 830 

CONSTABLE— (.See  Sheriff.) 

Form  of  declaration  for  seizing,  etc. ,  property  exempt,  etc 351 

Form  of  plea  justifying  arrest,  etc 364 

Form,  same,  etc 365 

CONTRIBUTORY  NEGLIGENCE— (5ee  Case.) 

COPY  OF  INSTRUMENT  OR  ACCOUNT  SUED  ON— 

Statute  requiring 29 

Continuance  for  want  of 29 

Waiver  of 30 

With  plea  of  set-off 31 

CORAM  NOBIS— 

Writ  of,  abolished 712 


86-i  GENERAL   INDEX. 

corporations- 
How  served 23 

Plea  in  abatement  by 40 

Confession  of  judgment  by 611 

CORPORATION— NUL  TIEL— Plea  of— {See    Nul  Tiel  Corpora- 
tion.) 
COSTS— 

On  change  of  venue 780 

In  action  of  account 253 

In  trial  of  right  of  property 833 

{See  Security  for  Costs.) 
COVENANT  -Action  of— 

Where  the  action  Ues,  etc 264 

Covenants  in  deeds,  etc. ,  breaches  of,  etc 266 

Defenses  to  the  action 278 

Pleas  as  to  part,  etc 279 

Pleas  to  several  counts 280 

(See  observations  following  each  precedent.) 

(For  forms  of  declaration,  pleas,  etc.,  see  Index  to  Forms,  post, 
in  Covenant — Action  of.) 
COUNTY  CLERK— (5ee  Marriage  License.) 

CRIMINAL  CASES— 

Change  of  venue  in 781 

CRIMINAL  CONVERSATION— 

Trespass  will  lie  for 324 

Form,  same,  in  trespass , 348 

Case  will  lie  for 629 

Form  of  declaration  for,  in  case 660 

(See  observations  following  each  precedent.) 

CROSS-MOTION— 

For  leave  to  file  security  for  costs 15 

DAMAGES— 

In  replevin 319-20 

In  trover 297 

In  trespass 348 

Measure  of 343 

Vindictive 847 

In  qui  tarn  actions ' 430 

On  injunction  bond 470 

DEATH— 

Of  party  to  suit 38-40 

Of  garnishee 402 

Of  defendant  in  mandamus 548 

Of  trial  judge  pending  motion  for  new  trial 795 

Of  trial  jvidge  before  signing  bill  of  exceptions 741 

DE  BONIS  ASPORTATIS— 

Form  of  common  count  for,  in  trespass 349 


GENEEAL    INDEX.  865 

DEBT— Action  of— 

Where  the  action  lies,  etc 425 

Penal  actions  under  statute 428 

Commencement  of  the  action 430 

Form,  praecipe  for  summons 430 

Declaration  in 430 

Precedents  of 434 

Payee  v .  maker  of  note 436 

On  bill  of  exchange 438 

On  an  award 438 

On  a  judgment 440 

Same,  of  another  state 440 

On  a  judgment  of  J.  P 442 

Action  for  rent 442 

On  single  bill  or  sealed  note 443 

On  appeal  bond  to  supreme  court 445 

On  replevin  bond 448 

Same 450 

On  sheriff's  bond 453 

On  guardians  bond 457 

Same 459 

On  administrator's  bond 461 

On  attachment  bond. 466 

On  injunction  bond  469 

On  license  bond 475 

Against  seller  of  liquor,  etc 476 

On  statute  for  cutting  trees 477 

On  statute  against  drover 480 

Against  sheriff  for  not  admitting  attorney 482 

By  landlord  against  tenant 483 

For  delinquent  taxes 484 

Profert — when  necessary 444 

Actions  on  penal  bonds,  etc 444 

Judgments  in  actions  on  penal  bonds,  etc 445 

Exceptions  and  provisions  in  statute 481 

Statutory  actions  against  railroads 485 

Statutory  actions  against  county  clerk  or  minister  for  violation  of 

statute  on  marriages 486 

Defenses  to  the  action 486 

Pleas  in  abatement 487 

Pleas  in  bar 487 

Special  non  est  factum 491 

Demurrer  after  craving  oyer 504 

(See  observations  following  each  precedent.) 
(For  forms  of  declarations,  pleas,  etc.,  see  Index  to  Forms, 
post,  Debt,  Action  of.) 

DECEIT— 

Case  will  lie  for 628 

55 


866  GENERAL    INDEX. 

DECEIT—Contimied. 

Declai-ation  for  obtaining  goods  on  credit  by 663 

for  deceit  in  warranty  of  a  horse 664 

for  deceit  in  sale  of  wool 665 

Observations  upon 665 

DECLARATION— 

Variance 27 

Additional  counts 27 

Time  for  filing 28 

Copy  of  account  sued  on 28 

Continuance  for  failure  to  file 29 

Dismissal  for  failvu^e  to  file 30 

Waiver  of  copy  of  account 30 

V/ith  plea  of  set-off 31 

Bill  of  particulars 31 

Where  judgment  confessed 606 

(For  forms  of  declarations,  see  Index  TO  Forms,  post.) 

DECREE - 

Action  of  debt  will  lie  upon,  of  other  state 427 

DEFAULT— 

Where  no  affidavit  of  merits  is  filed  with  plea,  etc 11 

When  set  aside 798 

Judgment  by 798 

Assessment  of  damages  upou,  etc 822 

In  attachment 383 

DEFECTS— 

Cured  by  pleading  to  merits 714 

Cured  by  verdict 714 

DEFENSES  TO  AN  ACTION— 

Motions  to  Quash  or  to  Dismiss 32 

How  made 32 

When  must  be  made 33 

When  writ  will  be  quashed  or  suit  dismissed  on  motion 33 

Pleas  to  the  Jurisdiction  and  in  Abatement 34 

Order  of  pleading 34 

Pleas  in  abatement 35 

Requisites  of 35 

When  must  be  pleaded 36 

Statute  relating  to 37 

Premature  action 37 

Variance 37 

Amendments  to  cure  matters  in  abatement 37 

Death  of  sole  plaintiff  or  defendant 38 

Death  of  sole  i^laintiff 38 

Death  of  sole  defendant 39 

Several  parties— death  of  part 39 

Death  of  all  on  one  side 40 


GENERAL   INDEX.  867 

DEFENSES  TO  AN  ACTIO'N— Continued. 

Judgment  upon  plea 40 

Plea  in  abatement  by  corporation 41 

To  jurisdiction 43 

Of  misnomer 44 

Of  non-joinder 46 

Of  misjoinder 49 

Another  action  pending 50 

Pleas  in  Bar 53 

Special  pleas  in  bar 55 

Must  answer  all  that  it  professes  to  answer 57 

Pleas  as  to  a  part,  etc 57 

Common  and  special  similiter  to  plea 58 

Leave  to  file  pleas 58 

Additional  pleas 58 

Replication  to  Pleas 59 

Demurrer 60 

Nature  of 60 

May  be  carried  back 61 

Effect  of  demurrer 62 

Pleading  over 62 

Waiver  of  demurrer 62 

May  be  general  or  special 63 

Judgment  upon 66 

Demurrer  to  evidence , 66 

Joinder  in 68 

Defenses  to  the  Action  of  Assumpsit— 
{See  Assumpsit,  Defenses  to,  etc.) 

DE  INJURIA— 

Form  of  replication  of,  in   case 704 

Form,  same,  in  trespass 359 

DEMAND— 

In  action  of  account 256 

In  trover 289 

In  replevin 306 

In  proceedings  for  mandamus 546 

DEMURRER— 

Nature  of 60 

May  be  carried  back 61 

Effect  of 62 

"Waiver  of 62 

Pleading  over 62 

May  be  general  or  special 63 

Special  demurrers   defined 63 

General  observations  on 63 

Judgment  upon 66 

To  evidence 66 

Joinder  in 67 


868  GENERAL    INDEX. 

BEMJJ'RKER—Contimied. 

After  craving  oyer 504 

(For  forms  of  demurrers,  see  Index  to  Forms,  post.) 

DENIAL— 

Of  joint  liability  {see  Joint  Liability.) 

Of  execution  of  instrument  (see  Execution.) 

DEPOSITIONS— OS'ee  Evidence.) 

When  they  may  be  taken 807 

Witnesses  residing  in  another  county,  etc 808 

Form  of  atfidavit  to  be  filed,  etc 808 

Form  of  notice  to  be  given,  etc 809 

Witnesses  residing  in  state,  non-resident  witnesses,  etc 810 

Form  of  notice  and  interrogatories 811 

Non-resident  witnesses  on  oral  inten-ogations,  etc 813 

Notice  by  mail,  etc 813 

Instructions  for  taking,  etc 814 

Form  of  caption  to,  etc 814 

Form  of  certificate,  etc 815 

Exceptions  and  objections  to 818 

(See  observations  following  each  form.) 

DILIGENCE— 

Required  of  maker  of  promissory  note 102 

DISCHARGE— In  Bankruptcy. 

Observations  upon  plea  of 236 

Form  of  plea  of 338 

DISMISSAL  OF  SUIT— 

When  motion  for  must  be  made 32 

How  made 32 

When  granted 33 

For  want  of  security  for  costs 14 

For  failure  to  file  declaration 30 

After  plea  of  set-off 189 

DISTRESS  FOR  RENT— 

Nature  of ,  etc 616 

Landlord's  lien,  etc 616 

What  may  be  distrained 617 

Form  of  distress  warrant 619 

Execution  of  warrant— When  a  trespass 328 

Return  of —Inventory 620 

Form  of  inventory,  etc 620 

Summons  to  be  issued 620 

Notice  to  non-residents,  etc 620 

Pleadings 621 

Procedure 621 

Defenses 621 

Set-off 621 

Form  of  affidavit  for  publication 62] 


GENERAL    INDEX.  869 

DISTRESS  FOR  RE^T— Continued. 

Judgment  for  plaintiff 632 

Where  there  is  no  personal  service 628 

Judgment  for  defendant 623 

Release  of  property  distrained,  etc 623 

Perishable  property 623 

Rights  against  sub-lessee 624 

DOG— (See  Animals.) 

DRAM  SHOP  ACT— (See  Intoxicating  Liquors.) 

DROVER— 

Action  of  debt  will  lie  against 429 

Statute 429 

Form  of  declaration  against 480 

Capias  ad  res.  against 480 

Observations  upon 480 

duplicity- 
How  taken  advantage  of 63 

DURESS— 

Form  of  plea  of 497 

Form  of  replication  to  plea 497 

Observations  on 497 

EJECTMENT— Action  of. 

Nature  of  the  action,  etc 409 

When  the  action  lies,  etc 409 

Title  necessary  to  sustain 411 

By  landlord  against  tenant 413 

Against  tenant  by  another  than  landlord 415 

Who  may  maintain,  etc 413 

Against  whom  to  be  brought 414 

Commencement  of  the  action 416 

Declarations  in 416 

Defenses  to  the  action 418 

Claim  of  mesne  profits , . . .  420 

Defenses  to  claim  for  mesne  profits  421 

Revival  of  judgment 424 

Common  source  of  title 424 

(See  observations  following  each  form.) 
(For  forms  of  declarations,  suggestions  of  mesne  profits  and, 
pleas,  etc.,  see  Index  to  Forms,  post,  Ejectment,  Action  of.) 

ENGINEER— 

Action  of  debt  will  lie  against,  under  statute  when 429 

ESCROW— 

Plea  in  debt  that  bond  was  delivered  as  an 491 

EVICTION— 

Plea  of 501 

Replication  to 502 


870  GENERAL    INDEX. 

EVIDENCE~(5^ee  Depositions.) 

Demurrer  to 66 

Mode  of  procuring,  etc 801 

Documentary  Evidence 801 

Form  of  notice  to  produce  on  trial,  etc 802 

Production  of  books  and  writings 803 

Books  of  account  as  evidence 804 

Oral  Testimony  of  Witnesses,  etc 806 

Attendance  of  witnesses,  how  procured 806 

Form,  prcecipe  for  subpoena  for  witnesses 806 

Tender  of  fees,  when  required 807 

Habeas  corpus  ad  testificandum 807 

EXCEPTIONS— (See  Bills  of  Exceptions.) 

To  report  of  referee 758 

Form  of 760 

EXECUTOR— 

Form  of  common  count,  on  promise  to  testator  with  profert  of  let- 
ters, etc 89 

Form,  same  on  note,  etc 97 

Form,  in  trover,  for  a  conversion  in  lifetime  of  testator 293 

Form  of  declaration  by  indorsee  of,  against  maker 96 

(See  observations  following  each  form.) 

EXEMPTIONS— 

Of  defendant  from  arrest  on  civil  process 25 

Of  defendant  from  service  of  summons 24 

Trespass  will  lie  for  taking  exempt  property  by  an  officer 328 

Declaration  against  constable  for  seizing  exempt  property 351 

EXECUTION— 

Replevin  will  not  lie  for  goods  taken  on 299 

Amendments  to 709 

Of  Written  Instruments. 

Pleas  denying 239 

Observations  upon 239 

EXTORTION— 

Debt  will  lie  against  R.  R.  Co.  for 485 

FAILURE  OF  CONSIDERATION— (5fee  Consideration.) 

FALSE  IMPRISONMENT— 

Form  of  declaration  for  in  trespass 347 

Observations  upon 348 

Form  of  declaration  for  in  case 655 

Observations  upon 657 

FEES— 

Of  witnesses  in  arbitration 594 

Of  referees 759 

Of  attorneys 774 

Of  attorneys  as  damages  in  suit  on  injunction  bond 474 


GENERAL    INDEX.  871 

FENCING— 

Declaration  v.  R.  R.  Co.  for  not 643 

Observations  upon 643 

FORCIBLE  DETAINER— 

Confession  of  judgment  in 615 

FORMER  ADJUDICATION— (See  Judgment  Recovered.) 

FORMER  CONVICTION— 

Form  of  plea  of,  in  debt,  on  statute 503 

FORMS  OF  ACTIONS 3 

FORNICATION— 

Form  of  declaration  in  slander  for  words  charging C91 

FRAUD— 

Observations  on  plea  of 170 

Diligence  required  of  maker  of  note 173 

Diligence  required  of  assignee  of  note 173 

Forms  of  pleas 174-175 

Form  of  replication  to 175 

As  ground  for  attachment 376 

Award  may  be  set  aside  for 590 

{See  Deceit.) 

FRAUDS —Statute  of.— (See  Statute  of  Frauds.) 

GAMBLING  CONTRACTS— 

Form  of  plea  that  note  was  given  in  settlement  of 235 

Same,  gambling  in  options 235 

GARNISHEES— (See  Garnishment,  Attachment,  etc.) 

GARNISHMENT— 

In  attachment  proceedings 382 

Form  of  affidavit  for,  on  judgment,  etc 393 

Service  and  return  of  summons  in 393 

Interrogatories  and  answers,  etc 393 

Form  of  interrogatories  to  garnishee 394 

Form  of  answer  of  garnishee 394 

Plaintiff  may  contest  answer 395 

Garnishee  may  deduct  demands,  etc .    396 

Other  claimants  to  effects  in  hands  of  garnishee 397 

Garnishee  may  contest  proceedings,  etc 398 

What  is  subject  to  garnishment 399 

Non-resident  garnishees 401 

Judgment 401 

Conditional  judgment 401 

Final  judgment 401 

Form  of  judgment 402 

Death  of  garnishee,  etc 402 

Effect  of  judgment  against  garnishee 402 

When  debt  of  garnishee  is  not  due,  etc 402 

GENERAL  ISSUE— (See  Defenses  to  the  Various  Actions.) 


872  GENERAL   INDEX. 

GOODS  SOLD  AND  DELIVERED,  ETC.-- 

Form  of  count  on 76 

Form,  same,  bargained  and  sold 76 

GUARANTOR— 

Form  of  declaration  against  on  note 108 

Observation  on 101-108 

GUARDIAN— 

Foi'm  of  declaration  on  bond  of,  etc 457 

Form,  same,  etc 459 

Observations  upon 458 

HABEAS  CORPUS— 

History  of  the  remedy,  etc 505 

When  writ  will  be  granted,  etc 507 

By  whom  application  for  may  be  made 509 

To  whom  made,  etc 510 

Form  of  application 511 

Allowance  and  issuing  writ,  etc 515 

Indorsement 515 

Service  of  the  writ,  etc 515 

Expense  of,  etc 516 

Return  of,  etc 516 

Precedence  given  to  writ 517 

Examination,  etc 518 

Denial  of  return,  etc 518 

Causes  for  discharge 518 

{See  observations  following  each  form.) 
(For  forms  in  proceedings   by  Habeas  Corpus,  see  Index  TO 
Forms,  post,  Habeas  Corpus.) 

HORSES— (See  Animals.) 

ILLEGAL  CONSIDERATION— Plea  of— 

Observations  upon 234 

Forms  of  pleas 235 

Form  of  replication  to 235 

INDEBITATUS  COUNTS— (fifee  Forms  of  in  Index  to  Forms,  in  As- 
sumpsit AND  Debt.) 

INDORSER— 

Form  of  declaration  against 99 

Observations  upon 100,  105,  106,  107 

INFANCY— Plea  of— 

Observations  upon 160 

Form  of 163 

Form  of  replications 163,  164 

Form  of  rejoinder 164 

INFANTS— Suits  by 14 

Suits  against 21 

Confession  of  judgment  by 611 


GENERAL   INDEX.  873 

INFORMATIOX— (<S>e  Quo  Warranto.) 

INJUNCTION  BOND— 

Form  of  declaration  on 469 

Observations  on 470 

Assessment  of  damages  on 470 

INSANE  PEESONS— 

Suits  against 21 

INSOLVENCY— 

Form  of  declaration  in  slander  for  words  imputing 694 

INSURANCE  POLICIES— 

Form  of  declaration  on,  in  assumpsit 137 

Form,  same,  etc 140 

Form,  same,  in  covenant 276 

(See  observations  following  each  precedent.) 

INTENT— Wrongful— 

Not  necessary  to  constitute  trespass 329 

INTEREST— 

Need  not  be  specially  claimed  in  declaration  except  when  given  by 

statute 437 

Form  of  common  counts  for 77 

INTERPLEADER— 

By  third  party  in  attachment,  etc 387,  834 

Tlie  statiite 834 

Observations  upon 834 

Form  of,  by  third  party  claiming  property 388 

INTERROGATORIES— 

To  garnishee 393 

Form  of 394 

INTOXICATING  LIQUORS— 

Declaration  against  seller  by  widow 672 

Same  against  seller  and  landlord G73 

Observations  upon 674 

JOINDER  OF  COUNTS— 

In  different  kinds  of  trespass  allowed 344 

Replevin  and  trover  may  be  joined,  etc 292 

Allowed  in  trover  and  case 292 

Counts  on  specialty  and  on  simple  contract  may  be  joined 431 

Counts  in  debt  and  assumj)sit  can  not  be  joined 431 

JOINT  DEBTORS— 

Attachment  against 380 

JOINT  LIABILITY— 

Plea  denying 241 

Observations  upon 241 

Form  of  plea,  by  one  defendant 241 

Form,  by  defendants,  denying 241 


87-1  GENERAL   INDEX. 

JOINT  TI^ESPASSERS— 

Ti'espass  will  lie  against S32 

JUDGE - 

Death  of,  before  signing  of  bill  of  exceptions 741 

To  what  venue  may  be  changed ' 783 

(See  SuBjiussiON  to  Judge.) 

JUDGMENT— 

Upon  demurrer 66 

In  action  of  account 253 

In  trover 291 

In  replevin 320 

In  personam,  in  attachment 375 

In  attachment  when  defendant  is  not  personally  served 390 

In  garnishment,  conditional 401 

Final 401 

Effect  of 402 

Form  of 402 

In  attachment  of  water  craft 407 

In  action  on  penal  bonds 445 

In  quo  icai'mnto  proceeding^ 575 

Upon  an  award 583 

In  distress  for  rent 622-3 

In  trial  of  right  of  property 832 

Amendment  of 714 

Form  of  declaration  in  debt  upon 440 

Observations  upon 440-1 

Revival  of  judgment— (See  Scire  Facias.) 

(See  Arrest  of  Judgment  and  Confession  of  Judgment.) 

JUDGMENTS— (See  Confession  of  Judgment.) 

Nature  and  Effect  of,  etc 821 

Interlocutory  or  final,  etc i 821 

By  default,  etc 821 

Damages,  assessment  of 822 

Of  non-suit,  etc 824 

Effect  of,  etc 824 

On  demurrer 825 

On  verdict 825 

Form  of  judgment,  etc 825 

Judgment  after  death  of  defendant 827 

Forms  of  Declaration  on. 

On  judgment  in  same  court 440 

Same,  of  another  State 440 

Same,  of  J.  P.of  another  State 442 

Motion  in  arrest  of 733 

(See  observations  following  each  form.) 

Form,  scire  facias  to  make  party  to 524 

Form,  same,  to  revive,  etc 526 


GENERAL   INDEX.    •  875 

JJJBG^IE^T— Continued. 

Observations  on,  etc 526 

Upon  plea  in  abatement 40 

JUDGMENT  RECOVERED— 

Plea  of 205 

Observations  upon 205 

Form  of  plea  of 208 

Form  of  replication  to  plea 209 

(See  Arrest  of  Judgment.) 

JURISDICTION— 

Form  of  plea  to  jurisdiction  of  the  court 41 

Observations  on 42 

Of  state  and  federal  courts  over  navigable  waters 407 

JURY— 

Right  of  trial  by 725 

Who  are  competent  jurors 736 

Who  are  exempt 726 

Challenge  of  jurors 727 

to  the  array 727 

to  the  poll 728 

for  cause 728 

peremptory,  etc 729 

Polling  the  jury,  etc 731 

JUSTICE  OF  THE  PEACE— 

Form  of  plea  by,  justifying  issuing  of  capias,  etc 364 

Certiorari  to.  etc 558 

Form  of  petition  for  certiorari  to.  etc 563 

When  trespass  will  lie  against 324 

Form  of  declaration  upon  judgment  of,  of  another  state 443 

Observations  u^jon 443 

JUSTIFICATION- 
FORMS  OF  Pleas  and  Replications,  etc. — 

In  slander,  of  words  imputing  perjury 703 

Replication,  de  injuria  to  plea 704 

In  slander,  words  imputing  larceny 705 

By  sheriff,  of  seizure  under  execution 367 

By  same  in  trespass,  etc 3o9 

Replication  to 359 

By  school  master,  of  battery,  etc 363 

By  a  J.  P.  for  issuing  a  capias  ad  res 364 

By  constable  for  arrest  without  process,  on  suspicion,  etc 364 

Same,  another  form 365 

Of  arrest  by  jirivate  person,  etc 36  7 

(See  observations  foUowmg  each  form,  also  Case,  Trespass  and 
Replevin.) 

LABOR  AND  SERVICES— 

Form  of  common  count  for,  in  assumpsit 76 


876  ■     GENERAL    INDEX. 

LANDLORD  AND  TENANT— (See  Distress  for  Rent,  Ejectment.) 
Form  op  Pleadings,  Relating  to— 

Declaration,  landlord  v.  tenant,  for  double  rent  under  the  stat- 
ute, etc 483 

Avowry  or  cognizance  for  rent 318 

Plea  to,  traverse  of  demise 318 

Same,  no  rent  in  arrear 319 

Declaration  on  covenant  to  pay  rent 273 

Same  for  not  cultivating,  etc.,  in  husbandlike  manner 121 

Same,  for  not  repairing,  etc 122 

LARCENY— 

Form  of  declaration  in  slander  for  words  charging 693 

LEASE— 

Declaration  on  covenant  to  pay  rent ' 273 

Observations  upon 273 

LIABILITY— Joint— (See  Joint  Liability.) 

LIBEL— 

Defined 698 

Form  of  declaration  for,  in  a  newspaper 695 

Same,  by  letter 696 

General  issue  in  actions  for 700 

LIBERUM  TENEMENTUM— 

Form  of  plea  of 372 

Observations  upon 372 

Form  of  replication  to  plea  of 373 

A  good  plea  to  trespass  clausum  fregit 374 

Form,  new  assignment  to  plea  of 374 

Observations  upon 374 

LICENSE— 

Form  of  plea  of,  in  trespass  to  real  estate 370 

Form  of  replication  to  plea  of 370 

Observations  on  plea  of 370 

Of  attorneys,  etc 762 

(See  Marriages.) 

LICENSE  BOND— 

Declaration  upon 475-6 

Observations  upon ■ 476-7 

LIEN— 

Of  attorneys,  etc 774 

Form  of  plea  of,  in  replevin 317 

Observations  on 318 

Form  of  plea  that  property  was  held  as  a  pledge 317 

Priority  of,  in  attachment  of  water  craft 408 

LIMITATIONS— Statute  of— 

Observations  upon 152 

Form  of  plea  of 157 

Form  of  replication  denying  plea  of 158 


GENERAL   INDEX.  877 

LIMITATIONS— Co«  tinned. 

Same,  that  defendant  was  out  of  state,  etc 159 

Form  of  rejoinder  that  action  was  commenced  within,  etc 159 

In  action  of  account . , 256 

In  qtio  ivarranto  proceedings 567 

In  confession  of  judgment 614 

LUNATICS— Suits  against ." .'  21 

MALICIOUS  PROSECUTION— 

Case  will  lie  for 639 

Form  of  declaration  for 655 

Observations  on 257 

MANDAMUS— 

Nature  and  purpose  of  the  writ 539 

Award  of,  discretionary  with  court 539 

In  what  cases  awarded 540-542 

When  will  not  lie 544 

Jurisdiction  of  the  court  in ,  etc 544 

Tlie  relator,  etc 545 

Proceedings— Summons 545 

Demand  necessary,  etc '. 546 

Petition  for,  etc 547 

Requisites  of 547 

Form  of 549 

Summons  to  issue,  etc 547 

Default,  Answer,  etc 547 

Time  to  plead,  etc 543 

Judgment,  etc 543 

False  return,  damages,  etc  543 

Making  new  defendants,  etc 543 

Death  of  defendant,  etc 543 

Effect  of  other  remedy 543 

Defenses  to,  etc 554 

Answer  or  plea 55I 

Form  of  answer  to  petition 553 

Form  of  plea  to  petition 554 

(See  observations  following  each  precedent.) 
MARKET  OVERT— 

Unknown  in  Illinois 284 

MARRIAGE  LICENSE— 

Debt  will  lie  on,  on  statute  v.  county  clerk  for  unlawfully  issuing  486 
Against  minister,  etc.,  for  performing  ceremony  without 486 

MESNE  PROFITS— (See  Ejectment.) 

MINISTER— (See  Marriage  License.) 

MINORS— 

Suits  by 14 

Suits  against 21 


878  GENERAL   INDEX. 

MISJOINDER— Of  Parties— 

Observations  upon 49 

Form  of  plea  of 49 

MISNOMER— 

Form  of  plea  of 43 

Form  of  replication  to  plea 46 

Observations  on 44 

MISTAKE— 

Award  may  be  set  aside  for 592 

MIXED  ACTIONS— 

Defined 3 

MOLLITER  MANUS  IMPOSUIT— (See  Trespass.) 

MONEY  COUNTS— 

Form  of  common  counts  thereon,  in  assumpsit 77 

Money  had  and  received 81 

Monej^  paid  and  expended 83 

Forms  of  count  in  debt 434 

MORTGAGES— 

Scire  faciaa  on,  to  foreclose 528 

Forms  of  scire  facias  on 530 

MOTIONS— 

Motion  to  quash  writs,  etc 32 

to  dismiss  suit,  etc 32 

how  made 32 

when  to  be  made,  etc 32 

when  writ  will  be  quashed 33 

for  security  for  costs,  etc 15 

for  leave  to  prosecute  as  a  poor  person 18 

for  a  continuanee 716 

for  a  new  trial 797 

to  set  aside  default 798 

In  arrest  of  judgment 733 

NECESSARIES— 

Form  of  count  in  assumpsit  for 77 

NEGLIGENCE— 

Defined 631 

(See  Case.) 

NEW  ASSIGNMENT— 

In  trespass 361 

Form  of 374 

NEW  TRIALS— 

Grounds  for  gi-anting 785 

Misbehavior  of  party  prevailing 785 

Mistakes  or  misconduct  of  jury,  etc 786 

Verdict  against  law  and  evidence 787 

Excessive  or  inadequate  damages 788 


GENERAL   INDEX.  8T9 

NEW  TRIALS-Continued. 

Admitting  improper,  or  refusing  proper  evidence 789 

Errors  in  charge  to  jury '''90 

Newly  discovered  evidence '^^^ 

Absence  or  mistake  of  witnesses "^93 

Surprise,  etc ^^4 

Death  of  ti-ial  judge "^95 

Improper  remarks  of  counsel "95 

Statutory  provisions ' "" 

By  agreement *9 ' 

Mode  of  applying  for ''^97 

7Q7 

Form  of  motion  for "^  * 

Setting  aside  defaults,  gi-anting  trial  on  merits,  etc 798 

NEXT  FRIEND— 

Suit  by ^^ 

NIL  DEBET— 

Plea  of,  in  debt 487 

Form  of  plea,  etc ^^"^ 

Form  of,  and  non  est  factum 490 

Form  of,  and  tender 494 

Form  of  replication  of,  to  plea  of  set-off 191 

(See  observations  following  each  form.) 

NON  ASSUMPSIT- 

The  general  issue  in  assumpsit 146 

Observations  upon 146 

Form  of  plea  of,  etc 148 

Form  of  plea  of,  to  suggestion  of  claim  for  mesne  profits  in  eject-  • 

4.                                                                                                     .423 
ment 

NON  CEPIT— 

Plea  of,  in  replevin 310 

Form  of  plea,  etc ^10 

Observations  upon 310 

NON  DAMNIFICATUS— 

Plea  of,  in  debt ^00 

Form  of  plea  of ^^^ 

When  proper,  etc ^^0 

Observations  upon ^00 

NON  DETINUIT— 

Form  of  plea  of,  in  replevin 311 

Observations  upon ^^  ^ 

NON   EST  FACTUM— 

Plea  of,  etc 489 

Observations  on 489 

Form  of  plea  in  covenant -"^8 

Form  of  same,  as  in  debt 489 

May  be  pleaded  without  verification 489 

Form  of,  and  nil  debet 490 


880  GENERAL    INDEX. 

NON  EST  FACTUM-Continued. 

Form  of,  after  craving  oyer , 490 

Observations  on 491 

Notice  of  special  defense  under 490 

Special  non  est  factum 491 

Form  of  plea,  bond  delivered  as  an  escrow 493 

Form  of  replication  to  plea  of  release 195 

NOT  GUILTY— 

General  issue  in  actions  for  torts  (see  defenses  in  the  various  forms 

of  Actions  in  Torts). 

May  be  pleaded  in  action  in  debt,  for  penalty 487 

NON-JOINDER— 

Of  party  as  defendant,  etc 46 

Form  of  plea  of,  in  abatement 46 

Form  of  replication  to  plea  of 47 

Observations  on 47 

Form  of  plea  of,  party  plaintiff  in  abatement 48 

Observations  on 48 

NON-RESIDENT— 

Plaintiff  required  to  give  security  for  costs,  etc 13 

Defendants  in  attachment 383 

Garnishees 401 

Defendants  in  distress  for  rent 620 

NON-SUIT— 

Judgment  upon 824 

NO  RENT  IN  ARREAR— 

Form  of  plea  of,  in  debt 501 

Form,  same,  to  avowry,  in  replevin 819 

(See  observations  following  forms.) 

NOTICE— 

Of  special  matter  under  general  issue 150 

Form  of  notice  of  set-off  under  general  issue 151 

May  be  given  under  plea  of  non  est  factum,  in  covenant 490 

Same,  in  debt 490 

Of  application  for  change  of  venue 777 

To  produce  documents  at  trial 803 

For  taking  depositions,  etc 809 

To  sheriff  in  trial  of  right  of  property 830 

Form  of 833 

NOTICE  BY  PUBLICATION— 

In  attachment 383 

Garnishment 401 

Of  water  craft 405 

In  distress  for  rent 621 

NUISANCE— 

Case  will  lie  for  maintaining 626-653 


GENERAL   INDEX.  881 

NUL  TIEL  CORPORATION— 

Plea  of 242 

Observations  upon 242 

Form  of 244 

NUL  TIEL  RECORD— 

Form  of  plea  of,  in  debt 494 

Observations  on 495 

Form  of  replication  to 496 

Replication  of,  to  plea  of  judgment  recovered 209 

Form  of  replication  of,  to  a  plea  of  another  action  pending 51 

OATH— 

Of  arbitrator 584 

Oath  of  referee 758 

OFFICER— 

When  trover  will  lie  by  or  against 286-7 

When  trespass  will  lie  by  or  against 327,  328-331 

Justification  by  in  replevin 316 

ONERARI  NON— 

Form  of  plea  of,  in  debt 493 

Observations  upon 494 

OPTIONS— (See  Gambling  Contracts.) 

OYER—  ■ 

Demurrer,  after  craving 504 

Form  of  plea  of  non  est  factum,  after  craving 490 

Observations  upon 491 

PARTIES— 

To  an  action 19 

Suits  for  use  of  another , 20 

Against  insane  persons 21 

Against  infants 21 

PARTNERS— 

Action  of  account  in  suits  between — {See  Account — Action  of,) 

Confession  of  judgment  by 610 

Forms  of  Declaration  by  and  Against. 

By  surviving  partner,  common  counts 86 

Against  surviving  partners 87 

By  partners  v.  partners  on  note 96 

By  surviving  partner  on  note 98 

payment- 
Forms  OF  Plea  op. 

Observations  upon 195 

In  assumpsit 197 

Form  of  replication  to 198 

In  covenant 279 

In  debt  on  bond 498 

56 


882  GENERAL   INDEX. 

PENAL  BONDS— 

Actions  upon  for  performance  of  covenants 444 

PENAL  STATUTES— 

In  actions  upon  statute  must  be  strictly  construed 4B3-479 

Exceptions  and  provisos  in 481 

performance- 
Forms  OF  Plea. 

In  covenant 289 

In  debt 499-500 

Observations  upon 500 

PERJURY— (See  Slander.) 

Form  of  declaration  for  slander  for  words  charging 691 

PERSON— 

Trespass  for  injuries  to 323 

(For  forms  of  declaration  for  injuries  to  the  person,  see  Tres- 
pass— Action  of.) 
PERSONAL  ACTIONS. 

Defined 3 

PERSONAL  PROPERTY— (For  injuries  to.    See  Trespass,  Action  of.) 

petitions- 
Forms  of. 

For  certiorari  to  J.  P 560 

For  mandamus 547 

For  change  of  venue 777 

For  habeas  corptis 511 

PHYSICIANS - 

Form  of  common  count  for  services,  assumpsit 77 

Form  of  declaration  against,  for  malpractice,  case 669 

Observations  on 670 

PLEADING— 

Order  of 34 

Pleading  over 62,  825 

PLEADINGS— 

General  principles  of 1 

Object  of 1 

Term  defined 1 1 

The  common  law  system 1 

In  Illinois 2 

Kinds  of  actions 3 

Forms  of  actions 3 

Order  of  pleadings 4 

PLEAS— 

In  Abatement.    (See  Abatement.) 

In  Bar 53 

Nature  and  requisites  of,  etc 53 

Special  pleas  in  bar 55 


GENERAL    INDEX. 


883 


'ELiEAS— Continued. 

Must  answer  all  that  it  professes  to 57 

Pleas  as  to  a  part,  etc 57 

Common  and  special  sirailiter  to 58 

Leave  to  file  pleas 58 

Leave  to  file  additional  pleas 58 

(See  pleas  in  bar  under  title  of  respective  Forms   of  Ac- 
tion.) 

PLEDGE— 

Plea  in  replevin  that  property  is  held  as 317 

POOR  PERSONS— 

May  prosecute  suits  without  costs,  etc 18 

Form  of  affidavit  for  leave,  etc 18 

POSSESSION— 

Necessary  to  maintain  trespass 330-334 

PRECIPE— Generally , 5 

(See  Index  to  Forms,  x>ost.) 

PRAIRIE- 

Declaration  in  case  for  negligence  in  setting  fire  to 667 

PREMATURE  ACTION— 

How  set  up 37 

PRISONER— 

Counsel  for  may  be  assigned  by  court ; 773 

Action  will  lie  against  sheriff  for  refusal  to  permit  to  see  attorney  482 
Form  of  declaration  for 483 

PRIVILEGED  COMMUNICATIONS— 

Slander  and  libel  will  not  lie  upon 680 

Between  attorney  and  client 773 

PROCESS— 

Amendments  to 709-713 

PROCESS  FOR  APPEARANCE— 

Summons — Form — When  returnable 22 

How  served 22 

Alias  writs 23 

Corporations,  how  served 23 

Trustee  of  railroad,  how  served 24 

Privileges  of  defendant 24 

The  return  of  summons 25 

In  actions  of  account 250 

In  attachment 390 

In  garnishment 393 

In  mandamus 545 

In  quo  loarranto 574-7 

Amendments  to  process 709-12 

In  distress  for  rent 620 


8S4:  GENERAL    INDEX. 

PROCESS  FOR  APPEARANCE— Con^/nwed. 

Of  witness  on  statutory  reference 759 

In  trial  of  right  of  property 830-1 

{See  Publication  of  Notice.  ) 

PROFERT— 

Unnecessary  in  Illinois 273 

When  necessary 444 

Omission  of,  how  advantage  of  taken 444 

PROPERTY  IN  DEFENDANT— 

Form  of  plea  of,  in  replevin 31 3 

Form  of  replication  to  plea  of 313 

Observations  on 313 

PROPERTY  IN  THIRD  PERSON— 

Form  of  plea  of,  in  replevin 314 

Form  of  replication  to  plea  of 314 

Observations  on 314 

PUBLICATION  OF  NOTICE— 

To  defendant  in  attachment 383 

To  defendant  in  attachment  in  aid 389 

To  non-resident  garnishee 401 

To  party,  of  taking  depositions 813 

PUIS  DARREIN  CONTINUANCE— 

Plea  of 244 

Observations  on 244 

Forms  of 247 

QUANTUM  MERUIT  - 

Form  of,  comit  of,  in  assumpsit 85 

Observations  on 84 

QUANTUM  VALEBANT— 

Form  of,  counts,  in  asmimpsit 85 

Observations  on 86 

QUESTIONS  OF  LAW  CERTIFIED— (.S'ee  Agreed  Cases.) 

QUI  TAM  ACTIONS— (See  Debt,  Action  of.) 

Observations  on 428,  477 

Damages  in 430 

QUO  WARRANTO— 

Nature  of  the  writ,  etc 565 

Jurisdiction  of  circuit  courts 566 

Practice 566 

When  leave  to  file  information  will  be  granted 566 

When  leave  to  file  information  will  not  be  granted 567 

Limitations 567 

AVhen  it  lies 568 

Parties 572 

Motion  for  leave  to  file  information 573 

Form  of  information 573 


GENERAL   INDEX.  885 

QUO  WARRANTO— CoJihnwed. 

Summons 574 

Service  of 574 

Defendant  I'equii'ed  to  plead 574 

Burden  of  proof 575 

Time  to  plead,  etc 575 

Judgment 575 

Appeal  and  writ  of  error 576 

Process 576 

The  Information,  etc 576 

Form  of,  by  attorney-general,  etc 576 

Form  of,  at  instance  of  relator 577 

Amendments. . .' 578 

Defenses  to  the  Proceeding 579 

Pleas  to,  etc 579 

Form  of  plea,  by  corporation,  etc 580 

Form  of  plea  by  person,  etc 580 

Replication  to  pleas,  etc 581 

Authorities 581 

(See  observations  following  each  precedent.) 

RAILROAD  COiyiPANY— 

Declaration  against  for  negligently  running  train  across  highway.  633 

In  what  county  suit  against  to  be  brought 637 

Declaration  against  for  failure  to  ring  bell  at  crossing 637 

Against  street  railway  company  for  improperly  managing  motor. .  638 

Declaration  against  for  negligence  in  management  of  train 639 

For  damages  caused  by  fire  from  engine 640 

For  damages  for  not  fencing  road 642 

By  administrator  for  causing  death  of  person 647 

Against  as  common  carrier  for  loss  of  goods 671 

Trespass  will  lie  against  for   unlawfully  expelling  passenger  from 

train 326 

Actions  in  debt  on  statute  against 485 

(See  observations  following  each  precedent.) 
{See  Common  Carriers.) 

REAL  ACTIONS— 

Defined 3 

REAL  PROPERTY— 

Trespass  for  injuries  to  332 

(For  forms  of  declarations  for,  see  Trespass — Action  of.) 
In  debt,  for  cutting  trees  on 428 

receiver- 
How  served 24 

RECOGNIZANCE— 

Observations  on 532 

Form  of  scire  facias  on 533 

To  cover  judgment  in  attachment 386 


886  GENERAL    INDEX. 

RECOVERY— FORMER— (5ree  Judgment  Recovered.) 

REFEREES — 

Statutory  proceedings,  etc 758 

Oath  of  referee 758 

Exceptions  to  report,  when  to  be  made 758 

Attendance  of  witnesses 759 

Judgment — Referee's  fees — Costs 759 

Testimony — Record 759 

Form  of  agreement  to  refer 759 

Form  of  order  appointing 760 

Form  of  report  of  referee  in  favor  of  plaintiff 760 

In  favor  of  defendant 760 

Form  of  exceptions  to  report 760 

REJOINDERS— (See  Defenses  to  an  Action,  and  titles  of  respective 
forms  of  action.) 

RELEASE— 

Observations  on 191 

Form  of  plea  of  in  assumpsit 194 

Form  of  replication  to  plea  of 195 

RENT— 

Declaration  in  debt  for 443 

Observations  upon 443 

(/See  Landlord  and  Tenant.) 
REPLEVIN— Action  of 

History  and  nature  of  the  remedy 298 

Where  the  action  lies,  etc 299 

Who  may  maintain  the  action 302 

Who  may  be  made  defendant 306 

Demand,  when  necessary 306 

Commencement  of  the  Action 306 

Venue 306 

Form  of  plaint  or  affidavit 307 

Bond 308 

Declaration  in 309 

Defenses  to  the  action 310 

Judgment  for  plaintiff 319 

For  defendant—  Retorno  habendo 320 

For  damages 219-20 

(See  observations  following  each  form. ) 
(For  forms  of  declarations,  pleas,  replications,  etc.,  see  Index 
TO  Forms,  post,  Replevin,  Action  of.) 
REPLEVIN  BOND— 

Plea  to  declaration  on 502 

Observations  on 502 

REPLICATIONS— (See  Defenses  to  an  Action,  and  titles  of  respect- 
ive forms  of  actions.) 
RETAINER— (See  Attorneys,  etc.) 


GENERAL    INDEX. 


887 


RETURN— Of  SuinioNs 25 


Amendments  to. 


09 


(See  Process  for  Appearance.) 
RETORNO  HABENDO— (See  Replevin.) 
REVIVAL  OF  JUDGMENT— 

In  ejectment *'** 

(See  Scire  Facias.) 
SALOON-KEEPER— (See  Intoxicating  Liquors.) 

SCIRE  FACIAS— 

Nature  of  the  writ,  etc ^23 

To  make  party  to  judgment ^^i 

Against  garnishees,  etc ^-^^ 

To  revive  judgment ^*^ 

Form  of  praecipe  for ^'-" 

Form  of,  to  revive  judgment 526 

In  ejectment 

Form  of,  to  revive  judgment  in  ejectment 527 

On  mortgages,  etc 5-wO 

Form  of,  to  foreclose  mortgage 530 

Form,  same,  etc 530 

On  recognizances,  etc 53~/ 

Form  of,  on  recognizance 533 

Defenses  to,  etc 536 

What  defendant  may  plead 536 

(See  observations  following  each  form.) 

SECURITY  FOR  COSTS— 

When  required ^^ 

By  non-residents,  etc.,  before  commencing  suit 13 

Suits  on  official  bonds 13 

In  penal  actions 1^ 

Suits  by  infants,  by  next  friend,  etc 14 

Form  of  security  for 1"* 

Approval  and  effect  of  bond  for 14 

Motion  to  dismiss  for  want  of 15 

Rule  to  file  security 15 

Cross-motion  for  leave  to  supply,  etc 15 

Objections  to  surety ^5 

After  suit  brought ^5 

When  required,  etc 15 

Form  of  affidavit  for  rule,  to  give,  etc 15 

Form  of  bond  for  costs  after  suit  brought 18 

Plaintiff  a  poor  person,  etc 18 

Form  of  affidavit  for  leave  to  prosecute  as  such 18 

SEDUCTION— 


Case  will  lie  for. 


629 


Of  plaintiffs  daughter,  etc 661 

Trespass  will  Ue  for ^^ 


888  GENERAL   INDEX. 

SEDUCTION— Continued. 

Form,  same,  in  trespass 348 

Form  of  declaration  for,  in  case 661 

SET-OFF— 

Form  of  notice  of  set-off  mider  general  issue 151 

Copy  of  instrument  or  account  to  be  filed  with  notice  or  plea,  etc. .     31 

Dismissal  after  plea 189 

Can  not  be  allowed  in  trover 296 

Form  of  plea  of  set-off,  in  assumpsit 189 

Form  of  replication  to 190 

Form  of  replication,  nil  debet,  to  plea,  of 191 

Form  of  plea  of  set-off,  in  debt 498 

In  distress  for  rent 621 

(See  observations  following  each  form.) 

SHERIFF— (S^ee  Constable.) 

When  may  maintain  trover 287 

Wlipn  trover  will  lie  against 286 

Forms  of  Declarations  Against. 

For  taking  insufficient  sureties  in  replevin 667 

On  his  official  bond  for  not  admitting  counsel  to  prisoner 482 

Form  of  Plea  by. 

Justification  under  execution  in  replevin 315 

Same,  in  trespass 367 

(See  observations  following  each  precedent.) 
SIMILITER— 

Common  and  special  to  pleas 58 

Form  of  special  similiter 58 

Form  of,  to  replication,  concluding  to  the  country 59 

SLANDER— 

Defined 678 

When  case  will  lie  for 679 

Malice  essential  to  support  action 681 

Declaration  for 685 

General  form  of 690 

For  charging  fornication 691 

For  charging  perjury 691 

For  charging  larceny 693 

For  words  spoken  in  foreign  language 693 

For  imputing  insolvency 694 

General  issue  in  action  for , .  700 

Special  pleas  in  actions  for 702 

SON  ASSAULT  DEMESNE— 

Form  of  plea  of 358,  359 

Observations  upon 858 

SPECIAL  PLEAS— 

In  bar 55 

In  case 699 


GENERAL    INDEX. 


889 


STATUTES— (S^ee  Penal  Statutes.) 

STATUTES  OF  FRAUDS— 

Plea  of l^'* 

Observations  upon l"'* 

Original  and  collateral  undertakings 166 

Form  of 1*^^ 

Form  of  replication  to 169, 170 

STATUTE  OF  LIMITATIONS— (See  Limitations.) 

STATUTORY  SUBMISSIONS— (See  Arbitration  and  Award.) 

STREET— 

Duty  of  city  to  keep  in  safe  condition 649 

Declaration  against  city  for  failure  to 649 

STREET  RAILWAY— 

Declaration  against,  for  improperly  handling  motor 638 

SUBMISSION  TO  JUDGE— 

Statutory  provisions '^^^ 

Form  of  agreement  to  submit 783 

SUGGESTION  OF  MESNE  PROFITS— (See  Ejectment.) 

SUMMONS— (See  Process  for  Appearance.) 

sureties- 
Forms  OF  Pleas  by. 

That  creditor  gave  further  time  to  principal,  etc 222 

That  creditor  was  requested  in  writing  to  sue,  etc 222 

Right  of,  where  judgment  confessed 611 

(See  observations  preceding  and  following  these  forms.) 

TAXES— Delinquent— 

Form  of  declaration  for 484 

Observations  upon 484 

TENANT  IN  COMMON— 

Trover  by 286 

TENDER— Plea  of— 

Observations  upon 210 

Form  of  plea  of,  in  assumpsit 213 

Forms  of  replications  to  plea  of 215,  216 

Form  of  plea  of,  in  debt 494 

TIMBER— (See  Trees.) 

title- 
To  real  estate  not  necessarily  in  question,  in  trespass 336 

TORT— 

Confession  of  judgment  for 61 1 

TORT-FEASORS— Joint— (See  Case.) 

TREES— 

Form  of  declaration  in  trespass  for  cutting  down 3.54 

Debt  will  lie  upon  statute  for  cutting 428 


890  GENERAL    INDEX. 

TREES— Contimied. 

Form  of  declaration  upon  statute  for  cutting  trees 47'i 

Observations  upon 477 

TRESPASS— Action  op- 
Nature  OF  TEE  Action,  etc 391 

Distinction  between  trespass  and  case  abolished 323 

May  be  joined  with  case 633 

For  Injuries  to  the  Person 323 

Where  the  action  lies 327 

Against  an  officer 328 

By  an  officer 331 

Who  may  maintain  the  action,  etc 330 

Against  whom  it  lies,  etc 332 

For  Injuries  to  Real  Property 332 

Where  the  action  lies 332 

Commencement  of  the  action 338 

The  declaration,  etc 338 

Matter  or  thing  affected 338 

Plaintiff's  right  or  interest 339 

Statement  of  the  injury 340 

The  damages 342 

Measure  of 343 

Vindictive,  etc 343 

Joinder  of  counts,  etc 344 

Defenses  to  the  Action 355 

Pleas  in  bar 355 

New  assignment,  etc 361 

(See  obsei'vations  following  each  precedent.) 

(For  forms  of  declarations,  pleas,  replicatiqns,  etc,,  see  Index 
TO  Forms,  2Mst,  Trespass,  Action  of.) 
TRESPASS  ON  THE  CASE— 

Distinction  between  and  trespass 322 

{See  Case.) 
TRIAL  OF  RIGHT  OF  PROPERTY— 

Former  statutes 828 

Proceedings  for 829 

Present  statute 829 

Trial  in  county  court 830 

Notice 830 

Service  of  summons — Continuance 830 

Notice  by  publication 831 

Entry  of  appearance 831 

Trial— Pleading— Jury 831 

Trial  by  jury 831 

Subpoenas  for  witnesses 832 

Judgment — Exempt  property —Costs 832 

Appeal — Bond — Trial  de  novo 832 

Judgment — Indemnity 832 


GENERAL    INDEX.  891 

TRIAL  OF  RIGHT  OF  FROPEKIY— Continued. 

Apportionment  of  costs — Fees 833 

Form  of  notice  to  sheriff  of  claim 833 

Interpleader  in  Attachment— 

The  statute 834 

Observations  upon 834 

Form  of  interpleader 388 

TRIAL  AND  VERDICT— 

Who  maj'  ppen  case,  etc - 838 

Order  of  proceedings  at  the  trial,  etc 838 

Deliberations  of  the  jury 841 

Delivery  of  the  verdict,  etc 843 

Polling  of  the  jury 843 

Verdicts,  etc 843 

General  verdicts,  etc 843 

Special  verdicts,  etc 841  -4 

Special  findings 844 

Trial  by  court 846 

Propositions  of  law 846 

Form  of  submission  of 848 

TROVER— Action  of— 

Nature  of  the  action,  etc 283 

Where  the  action  lies 383 

By  tenant  in  common 286 

Against  an  officer 286 

By  an  officer 287 

Conversion  the  gist  of  the  action 287 

What  constitutes 287 

Demand — Whether  necessary 289 

Essentials  to  supi)ort  the  action 290 

Judgment 291 

Commencement  of  the  action 291 

The  declaration 291 

Forms  of  declarations 292,  293 

Defenses  to  the  action 295 

Pleas  in  bar 295 

Form  of  plea  of  general  issue 296 

What  plaintiff  must  prove 297 

Damages 297 

May  be  joined  with  case 633 

Set-off  can  not  be  allowed 296 

(See  observations  following  each  precedent. ) 
(For  forms  of  declarations,  pleas,  etc.,  see  Index  to  Forms. pos^, 
Trover — Action  of.) 

TRUSTEES— Of  Railroad— 

Service  upon 24 


892  GENERAL    INDEX. 

USURY— 

Observations  upon  plea  of 176 

Form  of  plea  of 182 

Form  of  )-eplication  to  plea  of 183 

VACATION — (See  Confession  of  Judgment.) 
VARIANCE— 

Between  allegations  and  proof 27 

Between  summons  and  declaration ■ 37 

VENUE— 

In  replevin 306 

In  attachment 379 

Where  suits  v.  R,  R.  Co.  may  be  brought 637 

(See  Change  of  Venue.) 
VERDICT— 

What  defects  cured  by 714 

Against  law  and  evidence,  ground  for  new  trial 789 

Judgment  on 825 

(See  Trial  and  Verdict.) 
VI  ET  ARMIS— (See  Trespass.) 
VINDICTIVE  DAMAGES— (See  Damages.) 
WANT  OF  CONSIDERxiTION— (See  Consideration.) 
WAREHOUSE  ROOM— 

Form  of  common  count  for 78 

WARRANTY— Breach  of— 
Forms  of  Declarations  on — 

Of  a  horse,  etc 118 

Of  goods  sold  by  sample,  etc 119 

Of  cov^enants  in  deeds,  etc 270-1-2 

Forms  of  Pleas  of  Breach  of — 

To  declaration  on  note,  etc 225 

Same,  etc 228 

Same,  etc 229 

Same,  etc. ,  of  title  to  land 226 

(See  observations  preceding  and  following  each  precedent.) 

WATER— 

Case  will  lie  for  obstructing  natural  flow  of 630 

Declarations  for  same 652,  666 

WATER-CRAFT— (See  Attachment.) 
WITNESSES— (See  EvmENCE.) 
WORK  AND  LABOR— 

Form  of  common  count  for 76 

Same,  for  work  and  materials 84 


INDEX  TO  FORMS. 

(See  General  Index,  ante.) 


ABATEMENT— 

Forms  of  pleas  in. 

No.      1.     To  jurisdiction  of  court 41 

No.      2.     Misnomer  of  defendant 43 

No.      4.     Non-joinder  of  party  defendant 46 

No.      6.    Same,  of  party  plaintiff 48 

No.      7.     Misjoinder  of  defendants,  etc 49 

No.      8.     Anotiier  action  pending 50 

No.  219.    In  attachment 384 

Forms  of  replications  to  pleas. 

No.      3.   .To  plea  of  misnomer 46 

No.      5.    To  plea  of  non-joinder 47 

No.      9.    Nul  tiel  record  to  plea  of  another  action  pending 51 

No.      9a.  New  assignment  to  plea  of  another  action  pending 51 

Forms  of  demurrer  to  pleas  of. 

No.    17.     General  form  of 67 

No.    18.    Joinder  in 67 

ACCOUNT— Action  of— 

Forms  of  declarations  in. 

No.  140.     Against  bailiff,  to  account  for  goods,  etc 257 

No.  141.     Against  receiver,  etc 257 

No.  142.     Tenant  in  common  against  co-tenant 258 

No.  143.     Partner  v.  partner,  etc 259 

No.  144.     Same,  as  bailiff  of  lands 260 

Forms  of  pleas  in. 

No.  145.     Never  bailiff,  etc 261 

No.  146.     Never  receiver,  etc 261 

No.  147.     To  suit  between  tenants  in  common 202 

No.  148.    That  defendant  has  fully  accounted 262 

ADMINISTRATOR- 
NO.  249.     Declaration  on  bond  of 461 

AFFIDAVITS— 
Forms  of. 

No.  218.    In  attachment 377 

No.  221.    Same,  in  aid  of  assumpsit 389 

(893) 


S94  INDEX    TO    FORMS. 

AFFIDAYITS—Contimied. 

No.  222.     Same,  in  aid  of  trespass,  etc 390 

No.  224.     For  process  of  garnishment .•> 393 

Of  claim  with  declaration 12 

No.    83.     Of  merits  with  plea 149 

No.  326.     For  publication,  in  distress  for  rent 621 

No.  161.     In  replevin 307 

For  ca,  ad  res.  charging  fraud,  etc 8 

Same,  concealing  property,  etc 9 

Same,  in  actions  sounding  mei'ely  in  damages,  etc 9 

For  rale  for  security  for  costs 16 

For  leave  to  prosecute  as  poor  person 19 

No.  363.     For  continuance 717 

No.  322.     Of  proof  of  warrant  of  attorney  to  confess  judgment. .  607 

No.  374.     Of  good  faith 756 

No.  387.     To  be  filed  before  taking  deposition  of  witness  residing 

in  another  county 808 

AGREED  CEASES— QUESTIONS  OF  LAW  CERTIFIED— 
Forms  in. 

No.  367.     Agreement  to  submit  between  parties  in  suit  pending.  750 

No.  368.     Decision  of  court  upon  agreed  cases 750 

No.  369.     Agreement  that  judge  may  certify  questions  of  law. . .  751 

No.  370.    Agreement  of  parties  as  to  questions  of  law 752 

No.  371.     Certificate  of  judge  as  to  questions  of  law,  etc 752 

No.  372.     Agreement  as  to  questions  of  law 753 

No.  373.     Decision  of  judge  upon  questions  of  law,  etc 755 

No.  374.     Affidavit  as  to  good  faith 756 

ARBITRATION  AND  AWARD— 
Forms  relating  to. 

No.  310.     Submission,  in  suit  pending 601 

No.  311.     Same,  each  party  to  select  one  arbitrator  and  the  court 

the  third 602 

No.  312.     Order  referring  suit  pending 602 

No.  313.     Oath  of  arbitrators 602 

No.  314.     Award,  in  suit  pending 602 

No.  315.     Submission  of  controversies  not  in  suit 603 

No.  316.     Award  in  controversies  not  in  suit 603 

No.  317.     Submission  of  all  matters  in  controversy 604 

No.  318.     Same,  on  common  law  submission,  by  one  arbitrator. .  604 

No.  321.     Award,  same,  by  several  arbitrators 605 

No.  319.     Form  of  arbitrators'  bond,  given  by  each  party  to  the 

other 605 

No.  237.     Form  of  declaration  on  an  award 438 

No.  277.     Form  of  plea  of  no  award 501 

No.  115.     Form  of  plea  of  award 204 

Forms  of  replications  to  pleas  of. 

No.  116.     To  plea  of  arbitrament 204 

No.  117.    To  plea  of  award 205 


INDEX    TO    FORMS.  895 

ARBITRATION  AND  AW ARD—Coniinned. 
Order  Referring  Suit  Pending. 

No.  313.     Form  of 602 

Forms  of  mcards. 

No.  314.     In  suit  pending 602 

No.  316.     In  controversies  not  in  suit 603 

No.  320.     On  common  law  submission,  one  arbitrator 605 

No.  321.     Same  by  three,  or  more  or  less  arbitrators 605 

Arbitration  Bond. 

No.  319.     Form  of,  given  by  each  party  to  the  other 605 

ASSUMPSIT— Action  of— (See  Defenses  to  the  Action  of)— 
Forms  of  Declarations  in. 

No.    24.     Commencement  and  conclusion  of 75 

No.    25.     Common  indebitatus  counts 76 

1.  Goods  sold  and  delivered 76 

2.  Goods  bargained  and  sold 76 

3.  Labor  and  services 76 

4.  Work  and  material 76 

5.  Money  lent 77 

6.  Money  expended 77 

7.  Money  received 77 

8.  Interest 77 

9.  Account  stated 77 

10.  Board  and  lodging 77 

11.  Hire  of  horses,  etc 77 

12.  Stabling  and  keeping  horses,  etc 77 

13.  Necessaries,  etc 77 

14.  Physician's  bill 77 

15.  Attorney's  bill 78 

16.  Warehouse  room 78 

No.    26.     Common  counts  consolidated 78 

No.    27.     Same,  condensed 78 

No.    28.     Quantum  meruit  count 85 

No.    29.     Quantum  valebant  count 85 

Common  Counts  relating  to  the  character  in  ivhich  the  plaintiff  sues, 
or  defendant  is  sued. 

No.    30.     By  surviving  partner  on  promise  to  both  partners 86 

No.    31.     Against  surviving  partner  for  work  done 87 

No.    31.     Husband  and  wife  for  work,  etc.,  by  wife  before  mar- 
riage*      87 

No.    33.     Against  husband   and   wife  for  work  done,  etc.,  for 

wife  before  marriage* 88 

No.    34.     By  executor  for  work,  etc. ,  on  promise  to  testator 89 

No.    35.     By  same,  on  promise  to  the  plaintiff  as  executor 90 

No.    35a.  By  administrator,  on  promise  to  intestate 90 

Special  Counts. 

On  promissory  notes. 
No.    36.     Paj'ee  v.  maker 91 

*  Not  necessary  iu  Illinois. 


896  INDEX    TO    FORMS. 

ASSTJMPSIT— Continued. 

No.     37.     Same,  with  common  counts 91 

No.    38.     Same,  short  form 92 

No.    39.     On  six  notes  in  one  count 93 

No.    40.     Indorsee  v.  maker 94 

No.    41.     Indorsee  of  executor  v.  maker 96 

No.    42.     Surviving  partner  as  payee   v.  surviving  partner  or 

maker 96 

No.    43.     Executor  of  payee  V.  maker 97 

No.    44.     Administrator  of  payee  V.  maker 98 

No.    45.     Partners  payees  v.  partners  makers 98 

No.    46.     Payee  against  husband  and  wife,  note  given  by  wife 

while  sole* 99 

No.    47.     Indorsee  against  indorser,  alleging  prosecution  of  suit 

against  maker 99 

No.    48.     Same,  suit  against  maker  unavailing 105 

No.    49.     Same,  maker  having  left  the  state,  etc 106 

No.    50.    Payee  v.  guarantor 108 

On  order. 
No.    51.     Payee  v.  drawer,  on  order  not  accepted Ill 

On  a  Chech. 
No.    52.    Payee  v.  drawer,  etc Ill 

On  inland  bills  of  exchange. 

No.    53.     Drawer  v.  acceptor,  on  bill  accepted,  generally 112 

No.    54.     Same,  etc 113 

No.    55.     Same,  on  bill  payable  to  a  third  person,  and  returned 

to,  etc. ,  drawer 114 

No.    56.    Payee  v.  acceptor,  on  bill  accepted  generally 115 

No.    57.     First  or  subsequent  indorsee  against  acceptor 115 

No.    58.    Payee  v.  drawer  of  bill,  on  default  of  acceptance 116 

No.    59.     Same,  defendants  had  no  effects  in  drawee's  hands. . .  116 
No.    60.     Same,  on  default  of  payments 116 

On  tvarranties. 

No.    61.     On  a  warranty  of  a  horse  to  be  sound 118 

No.    62.     Same,  of  hops  sold  by  sample 119 

On  leases. 
No.    63.    Landlord  v.  tenant  from  year  to  year,  on  implied  con- 
tract, etc 121 

No.    64.     Same,  for  leaving  premises  out  of  repair,  etc 123 

On  2)romises  to  marry. 

No.    65.     On  promise  to  marry  on  request 123 

No.    66.     Count  for  marrying  another  woman 123 

No.    67.     On  promise  to  marry  in  a  reasonable  time 123 

No.    68.     On  promise  to  marry  at  a  particular  time 124 

Against  bailees. 

No.    69.     Against  hirer  of  horse  for  using  it  improperly,  etc 127 

No.    70.     Against  carrier  by  land,  for  loss  of  goods 129 


*  Not  necessary  in  Illinois, 


INDEX   TO   FORMS.  897 

ASSUMPSIT-  Continued. 

No.    71.     Against  captain  of  ship,  on  his  bill  of  lading,  for  loss 

of  goods 130 

On  contracts  of  sale  of  goods,  etc. 

No.    72,     For  not  accepting  goods  sold 134 

No.    73.     For  not  accepting  goods  made  for  defendant 135 

No.    74.     For  not  delivering  goods  within  a  specified  time 135 

No.    75.     For  not  delivering  goods  at  a  particular  place,  etc 136 

No.    78.     On  promise  to  be  accountable  for  goods  sold  to  a  third 

person 142 

No.    79.     On  promise  to  pay  money  as  difference  in  exchange  of 

property 143 

On  contracts  for  employment. 

No.    80.     On  written  contract  for  employment,  etc 143 

No.    81.     Same,  on  verbal  contract 144 

On  policies  of  insurance. 

No.    76.     On  fire  insurance  policy,  etc 137 

No.    77.     Same ." 140 

ATTACHMENT — Proceeding  in.  Forms  in,  miscellaneous. 

No.  218.     Affidavit  for 377 

No.  219.     Plea  in  abatement  in 384 

No.  220.     Plea  by  third  party  claiming  property — interpleader. .  388 

No.  221.     Affidavit  for,  in  aid  of  assumpsit,  etc 389 

No.  222.     Same,  in  aid  of  trespass,  etc 390 

No.  223.     Judge's  order  for 390 

No.  224.     Affidavit  for  garnishment 393 

No.  225.     Interrogatories  to  garnishee 394 

No.  226.     Answer  of  garnishee 395 

Forms  in  Attachment  of  Water  Craft,  etc. 

No.  227.     Form  of  petition  for 404 

No.  228.     Same,  where  name  of  owner  is  unknown 405 

attorney- 
No.  348.    Declaration  against  for  negligence 670 

AWARD— (5ee  Forms  in  Arbitration  and  Award,  ante.) 
BAIL  IN  CIVIL  CASES— 
Forms  in,  viiscellaneous. 

Affidavit  for  ca.  ad  res.  charging  fraud,  in  actions  ex 

contractu 8 

Same,  charging  concealment  of  property,  etc 9 

Same,  in  actions  sounding  merely  in  damages 9 

Judge's  order  for  ca.  ad  res 10 

Bond  by  plaintiff 10 

Bond  by  defendant 11 

BILLS  OF  EXCEPTIONS— 
Forms  in. 

No.  365.     To  evidence,  instructions,  etc 746 

No.  366.    On  refusal  of  continuance 747 

57 


898  INDEX   TO   FOKMS. 

BOND— 

For  costs H 

By  non-residents 14 

Same,  after  action  brought 18 

CAPIAS  AD  RESPONDENDUM-(See  Bail  in  Civil  Cases.) 

CARRIERS — {See  Common  Carriers.) 

CASE— Actions  on  the— 
Forms  of  declaration  in. 
No.  327.    Against  R.  R.  Co.  for  negligently  running  train  across 

highway,  whei'eby  plaintiff  was  injured 633 

No.  328.     On  statute,  against  R.  R.  Co.  for  not  rmging  bell,  etc..   637 
No.  329.    Against  street  railway  company  for  improperly  man- 
aging cable  motor 638 

No.  330.     Against  R.  R.  Co.  for  negligence  in  management  of 

train,  etc 639 

No.  331.     Same,  for  damage  caused  by  fire  from  engine,  etc 640 

No.  332.     Same,  for  damages  resultmg  from  not  fencing  road, 

etc 642 

No.  333.     Same,  by  administrator,  for  causing  death  of  person. .   647 
No.  334.     Against  a  city,  permitting  sidewalk  to  remain  out  of 

repair,  whereby  plaintiff  was  injured 649 

No.  335.    Against  defendants    for    keeping  uncovered  vault  in 

sti'eet,  whereby  plaintiff  was  injured 651 

No.  335a.  Against  defendant  for  obstructing  the  natural  flow  of 

water,  etc 652 

No.  336.     Against  proprietor  of  stage-coach  for  negligence,  etc . .  653 
No.  337.     Against  defendant  for  keeping  dog  which  bit  plaintiff, 

etc 654 

No.  338.     For  malicious  prosecution 655 

No.  340.     For  criminal  conversation 660 

No.  341.     For  debauching  plaintiff's  daughter 661 

No.  342.     For  deceit  in  obtaining  goods  on  credit 663 

No.  343.     For  deceit  in  warranty  of  a  horse 664 

No.  344.    Same,  in  sale  of  wood  deceitfully  packed,  etc 665 

No.  344a.  Agamst  commissioners  of  highways  for  flooding  land 

by  a  ditch 666 

No.  344b.  For  negligence  in  setting  fire  to  prame 667 

No.  345.     Against  sheriff  for  taking  insufficient  sureties  in  re- 
plevin    667 

,No.  346.     For  overloading  and  immoderately  driving    a  horse, 

etc 668 

No.  347.    Against  physician  for  neglect,   etc.,  in  treatment  of 

plaintiff 669 

No.  348.     Against  an  attorney  for  negligence  in  prosecuting  an 

action 670 

No.  349.     Against  R.  R.  Co. ,  as  common  carrier,  for  not  deliver- 
ing goods,  etc 671 


INDEX    TO    FORMS.  899 

CASE-  Continued. 

No.  350.     Against  seller  of  intoxicating  liquors,  on  statute,  etc. , 

etc 672 

No.  351.     Against  same,  and  his  landlord,  on  statute,  for  in  jury- 
by  intoxicated  person 673 

For  Slander. 

No.  353.     General  form  for 690 

No.  353.     For  words  charging  an  immarried  woman  with  forni- 
cation    691 

No.  354.     For  words  charging  perjury 691 

No.  355.     For  words  charging  larceny 693 

No.  356.     For  words  spoken  in  foreign  language 693 

No.  357.     By  a  tradesman,  for  words  imputing  insolvency,  etc . .  694 

For  Libel. 

No.  358.     In  newspaper 695 

No.  359.     By  letter  imputing  insolvency,  etc 696 

Forms  of  Pleas  in. 

No.  360.     General  issue,  not  guilty 699 

No.  361.     Justification  of  words  imputing  perjury 703 

No.  363.     Justification  for  words  imputing  larceny 705 

Form  of  Replication  to  Plea. 

No.  362.     Of  justification,  in  action  of  slander,  etc.,  de  injuria. .  704 

certificate- 
No.  391.     To  deposition 815 

CERTIORARI— 
Form  of  Petition  for. 

No.  305.     To  justice  of  the  peace 562 

CHANGE  OF  VENUE— 

No.  380.     Form  of  notice  of  application  for 777 

No.  381.     Form  of  petition  on  account  of  prejudice  of  judge 778 

No.  382.     Same,  on  account  of  prejudice  of  inhabitants 778 

COMMENCEMENT  OF  AN  ACTION— 

Prcecipe  for  summons  or  capias 6 

Affidavit  to  be  filed  with  declaration 12 

Bond  for  costs  by  non-resident 14 

Affidavit  for  rule  for 16 

Security  for  costs  after  action  brought 18 

Affidavit  for  lease  to  prosecute  as  poor  person 19 

(See  Bail  in  Crv'iL  Cases.) 

COMMON  carriers- 
No.    70.     Declaration  in  assumpsit,  against  carrier  by  land  for 

loss  of  goods 129 

No.    71.     Form  of  declaration  in  assumpsit  against  captain  of  a 

ship  on  bill  of  lading  for  loss  of  goods 130 

No.  336.     Form  of  declaration  against  proprietor  of  stage  coach 

in  case,  for  negligence,  etc 653 

No.  349.     Against  R.  R.  Co.  in  case,  for  not  delivering  goods,  etc.  671 


900  '  INDEX   TO   FORMS. 

COI\IMON  COUNTS— (See  Forms  of  Declarations  in  Assumpsit.) 
CONFESSION  OF  JUDGMENT— 
Forms  in. 

No.  332.     Proof  of  warrant  of  attorney 607 

No.  323.     Cognovit 608 

CONTINUANCES- 

Forms  in  application  for. 
No.  363.     Affidavit  for,  on  account  of  absence  of  witness 717 

COSTS,  SECURITY  FOR— 

Form  of  bond  for,  by  non-residents,  etc 14 

Form  of  affidavit  for  rule 16 

Foi-m  of  bond 18 

Form  of  affidavit  for  leave  to  prosecute  as  poor  person.     19 
COVENANT— Action  of— 
Forms  of  declarations  in. 

No.  149.     Grantee  v.  grantor,  on  covenants  in  deed,  etc 270 

No.  150.     Same,  on  covenants  in  deed  against  incumbrances 271 

No.  151.     Second  or  remote  grantee  against  grantor,  on  covenants 

of  wai'ranty,  etc 272 

No.  152.     On  covenants  in  lease  to  pay  rent 273 

No.  153.     Apprentice  against  master  for  breach  of  covenants  in 

indenture  (Plea  No.  158.) 274 

No.  154.     On  fire  insurance  policy 275 

Forms  of  pleas  in. 

No.  155.     Non  est  factum 278 

No.  156.     Plea  of  payment  to  action,  etc.,  for  payment  of  money.  279 

No.  157.     Performance .♦ 280 

No.  158.     To  declaration  in  suit  by  apprentice,  plaintifif  deserted 

service,  etc.  (Dec.  No.  153) 281 

CRIMINAL  conversation- 
No.  340.     Declaration  in  case  for 660 

DEBT — Action  of — 
Forms  of  Declarations  in. 

No.  234.    Common  indebitatus  count 434 

No.  235.     Payee  v.  maker  on  promissory  note,  etc 436 

No.  236.     On  bill  of  exchange,  payee  v.  drawer,  etc 438 

No.  237.     On  an  award,  etc 43S 

No.  238.     On  judgment  in  same  court 440 

No.  239.     Same,  in  court  of  another  state 440 

No.  240.     Same,  of  justice  of  the  peace,  etc 442 

No.  241.     In  action  for  rent,  on  a  demise 442 

No.  242.     On  a  single  bill,  or  sealed  note 443 

No.  243.     On  appeal  bond,  on  appeal  to  supreme  court 445 

No.  244.     On  replevin  bond,  etc.  (Plea  No.  280) 448 

No.  245.     Same,  etc.  (Plea  No.  280) 450 

No.  246.     On  sheriff's  bond,  on  failure  to  make  amount  due  on 

execution,  etc 453 


INDEX   TO    FORMS.  901 

DEBT— Continued. 

No.  247.     On  guardian's  bond,  for  use  of  ward,  etc 457 

Same,  more  concise 458 

No.  248,     Same,  for  use  of  successor  of  guardian,  removed 459 

No.  249.     On  administi'ator's  bond 461 

No.  250.     On  attachment  bond,  etc 466 

No.  251.     On  injunction  bond,  etc 469 

Another  form,  etc 471 

No.  253.     On  license  bond,  action  for  use  of  wife  of  pei^son  to 

whom  intoxicating  liquors  were  sold 475 

No.  254.     On  statute,  against  seller  of  intoxicating  liquors,  by 

one  who  has  taken  care  of  person  intoxicated 476 

No.  255.     On  statute,  for  cutting  trees,  etc 477 

No.  256.     On  statute,  against  drover,  for  driving  off  horses,  cat- 
tle, etc 480 

No.  257.     On  statute,  against  sheriff,  for  not  admitting  attorney 

to  see  prisoner 482 

No.  258.     On  statute,  by  landlord  against  tenant,  for  double  rent, 

etc 488 

No.  259.     By  the  People,  to  recover  delinquent  taxes 484 

Form  of  pleas  to  declaration. 

No.  260.    Nil  debet 487 

No.  261.     Non  est  factum 489 

No.  262.     Non  est  factum  and  nil  debet,  to  debt  on  bond,  and 

simple  contract 490 

No.  263.     No)i  est  factum,  after  craving  oyer,  etc 490 

No.  264.     That  bond  was  delivered  as  an  escrow 492 

No.  265.     Onerari  non 493 

No.  266,     Tender,  to  debt  on  simple  contract — nil  debet  as  to 

pai-t,  and  tender  as  to  residue 494 

No.  267.     Nul  tiel  record 494 

No.  269.    Duress,  menace  to  kill 497 

No.  271.     Set-off,  to  debt  on  money  bond,  etc 498 

No.  272.     Payment,  to  debt  on  bond 498 

No.  273,     Failure  of  consideration  to  debt  on  specialty 499 

No.  274.     Performance,  generally 499 

No.  275.     Non  damnijicatiis 500 

No.  276.     To  debt  on  demise  for  rent,  no  rent  in  arrear 501 

No.  277.     To  declaration  on  arbitration  bond,  no  award  made. . .  501 

No.  278.     Eviction,  inaction  by  landlord  v.  tenant  (Rep.  No,  279).  501 
No,  280.     To  declaration  on  replevin  bond,  that  merits  were  not 

determined  in  replevin  suit,  etc 502 

No.  281.     To  debt  on  statute,  former  conviction  for  same  of- 
fense   503 

Forms  of  replications  to  x>lcas. 

No.  268.     To  plea  of  nul  tiel  record  (No.  267) 496 

No.  270.     To  plea  of  duress  (No.  269) 497 

No.  279.     Denying  eviction 502 


902  INDEX    TO    FORMS. 

deceit- 
No.  342.    Form  of  declaration  for  obtaining  goods  on  credit 663 

No.  343.     Same,  in  warranty  of  house 664 

No.  344.     Same,  in  sale  of  wool 665 

DEFENSES  TO  AN  ACTION— 
Pleas  in  Abatement. 
Forms  of. 

No.    1.     Plea  to  the  jurisdiction 41 

No.    2.     Plea  of  misnomer  of  defendant,  in  Christian  name 45 

No.    3.     Replication  to  No.  2 46 

No.    4.     Plea  of  non-joinder  of  party  as  defendant 46 

No.    5.     Replication  to  No.  4 47 

No.    6.     Plea  of  non- joinder  of  pai'ty  as  plaintiff 48 

No.    7.     Plea  of  misjoinder  of  defendant 49 

No.    8.     Plea  of  another  action  pending 50 

No.    9.     Replication  to  same,  nul  tiel  record 51 

No.    9a.  A  replication  to  same,  that  suit  is  for  different  causes  of 

action 54 

No.  10.    Special  similiter  to  plea 58 

No.  11.     Double  replication 59 

No.  12.     Similiter  to  replication  concluding  to  country 59 

No.  13.     Commencement  to  a  rejoinder  to  replication  to  a  special 

plea 59 

No.  15.     Conclusion  of  a  rejoinder  with  a  verification 60 

No.  16.     Rejoinder  to  a  double  replication 60 

Forms  of  demurrers. 

No.  17.     Demurrer  to  replication 67 

No.  19.     Short  form  of 68 

No.  20.     To  plea  in  abatement 68 

No.  22.     To  plea  in  bar 68 

Forms  of  joinder  in  demurrer. 

No.  18.     To  declaration  or  a  replication 67 

Short  form  of 69 

No.  21.     To  demurrer  to  plea  in  abatement 68 

No.  23.     To  demurrer  to  plea  in  bar 69 

DEFENSES  TO  THE  ACTION  OF  ASSUMPSIT— 
Forms  of  Pleas  in  Abatement  in. 

{See  Defenses  to  an  Action.) 
Forms  of  Pleas  in  Bar  in  general  issue. 

No.    82.     Non-assumpsit 148 

No.    84.     Notice  of  set-off  under 151 

Special  pleas  in  bar. 

No.    85.    Statute  of  limitations  (Rep.  No.  86,  88) 157 

No.    90.     Infancy  (Rep.  No.  91,  92,  94) 163 

No.    96.     Statute  of  frauds,  agreement  to  be  performed  within 

one  year,  etc.  (Rep.  97) 169 

No.    98.     Same,  promise  was  to  answer  for  debt  of  another,  not 

in  writing  (Rep.  99) 169 


I^SDEX   TO    FOKMS.  903 

DEFENSES  TO  THE  ACTION  OF  ASSUMPSIT— Co?i finned 

No.  100.     Fraud  and  circumTention  in  obtaining  execution  of  in- 
strument (Rep.  102) 174 

No.  101.     Fraud,  in  action  by  assignee  of  notes  by  surety  that  note 

was  obtained  by  fraud,  etc.  (Rep.  No.  175) 175 

No.  103.     Usury  (Rep.  104) 182 

No.  105.     Set-oflf  (Rep.  107) 189 

No.  108.    Release  (Rep.  109) 194 

No.  110.     Payment  (Rep.  Ill) 197 

No.  113.     Accord  and  satisfaction,  delivery,  etc.,  of  goods,  etc. 

(Rep.  113) 201 

No.  114.     Same,  account  stated  and  delivery  of  note  in  satisfac- 
tion   202 

No.  115.     Arbitration  and  award  (Rep.  116) 204 

No.  119.     Judgment  recovered  (Rep.  120) 208 

No.  121.     Tender,  etc.  (Rep.  122,  123) 213 

No.  124.     By  surety  on  note,  that  creditor  gave  further  time  to 

principal,  without  his  assent 223 

No.  125.     By  same,  on  note,  creditor  was  requested,  in  writing, 

to  sue,  etc 222 

No.  126.     Breach  of  warranty,  suit  on  note,  etc 225 

No.  127.    Want  of  consideration,  suit  on  note,  etc 227 

No.  128.     Total  failure  of  consideration,  suit  on  note,  etc 328 

No.  129.     Same,  bi-each  of  warranty  of  horse,  etc 229 

No.  130.     Total  failure  of  consideration,  note  given  for  fees,  etc.  230 
No.  131.     Same,  to  suit  by  assignee  of  note  given  on  purchase  of 

real  estate,  etc 231 

No.  132.     Partial  failure  of  consideration,  etc 233 

No.  133.     Promises  were  for  money  won  at  gaming  (Rep.  No.  134)  235 
No.  135.     Illegal  consideration,  note  given  for  difference  in  op- 
tions, etc 235 

No.  136.     Discharge  in  bankruptcy 238 

No.  137.     Denying  execution  of  instrument  sued  on 239 

No.  138.     By  one  defendant,  denying  joint  liabihty 241 

No.  139.     Denying  joint  liabihty 341 

No.  140.    Nul  tiel  corporation 344 

No.  141.     Puis  darrein  continuance 347 

Same,  another  form 347 

Same,  etc 247 

Forms  of  Replications  to  Pleas  in  Bar. 

No.    10.     Special  similiter  to  non  assumpsit,  No.  82 58 

No.    86.     To  plea  of  statute  of  limitations,  No.  85,  cause  of  action 

did  accrue  within,  etc 158 

No.    88.     Same,  defendant  was  out  of  state,  etc 159 

No.    91.     To  plea  of  infancy.  No.  90.  denying  infancy 163 

No.    92.     Same,  goods,  etc.,  were  necessaries,  etc.    (Rej.  No.  93.)  164 
No.    94.     Same,  defendant  confirmed  promises  after  becoming 

of  age  (Rej.  No.  95) 164 


904  INDEX    TO    FORMS. 

DEFENSES  TO  THE  ACTION  OF  ASSUMPSIT— Confrnwed. 

No.    97.     To  No.  96,  statute  of  frauds,  that  agreement  was  to  be 

performed  within  a  year 169 

No.    99.     To  No.  98,  statute  of  frauds,  promise  was  not  to  answer 

for  debt  of  another 170 

No.  103.     To  Nos.  100,  101,  denying  that  execution  of  instrument 

was  obtained  by  fraud 175 

No.  104.     To  No.  103,  plea  of  usury  that  note  was  given  on  legal 

contract,  etc 183 

No.  106.     Same,  statute  of  limitations  to  plea  of  set-off 190 

No.  107.     To  No.  105,  set-off,  nil  debet 190 

No.  109.     To  No.  108,  plea  of  release  non  est  facttim 195 

No.  111.     To  No.  110,  plea  of  payment  denying  payment 198 

No.  113.     To  No.  112,  plea  of  accord  and  satisfaction,  denying 

delivery  of  property,  etc 202 

No.  116.     To  No.  115,  plea  of  arbitration  and  award,  denying  the 

award 204 

No.  117.     Same • 205 

No.  118.     Same 205 

No.  120.     To  No.  119,  plea  of  judgment  recovered,  denying  that 

causes  of  action  were  the  same 209 

No.  122.     To  No.  121,  plea  of  tender,  denying  tender,  etc 215 

No.  123.     Same,  admitting  tender 216 

No.  134.     To  No.  133,  plea  of  gammg,  etc.,  that  note  was  not  for 

money  won  at  gaming 235 

Forms  of  Rejoinders  to  Eeplications. 

No.    89.     To  No.  86,  replication  to  plea  No.  85,  statute  of  lim- 
itations, denying  that  action  was  commenced  within, 

etc 159 

No.    93.     To  No.  92,  replication  that  goods  sold  to  infant  were 

necessaries,  denymg  the  same 164 

No.    95.     To  No.  94,  to  replication  to  plea  of  infancy,  that  de- 
fendant confirmed  promise,  etc.,  denying  the  same.  164 
No.  117.     To  replication  to  plea  of  award 205 

DEMURRERS— (See  Defenses  to  the  Action  of  Assumpsit.) 

DEPOSITIONS— 
Forms  in  taking. 
No.  387.     Affidavit  to  be  filed  before  taking  depositions  of  wit- 
nesses residing  in  another  county,  etc 808 

No.  388.     Notice  to  take,  etc 809 

No.  389.     Notice  and  interrogatories  for  taking,  etc.,  upon  in- 
terrogatories in  writing 811 

No.  390.    Caption  of ,  etc 814 

No.  391.     Certificate,  etc 815 

DISTRESS  FOR  RENT—Proceedings  by— 
Forms  relating  to. 

No.  324.     Warrant  of,  by  landlord G19 


INDEX   TO   rOEMS.  905 

DISTRESS  FOR  -RE^T—Continned . 

No.  325.     Inventor}^  to  be  filed  with  copy  of  distress  warrant 620 

No.  326.     Affidavit  for  publication,  etc 621 

DRAM  SHOP— (See  Intoxicating  Liquors.) 

duress- 
No.  869.    Plea  of,  in  debt 497 

No.  270.     Replication,  to  same 497 

EJECTMENT— Action  of— 
Forms  of  declaration  in. 

No.  229.     General  form 417 

No.  230.     By  several  persons,  naming  them,  as  plaintiffs,  jointly 

in  one  count,  and  separately  in  others 417 

Form  of  plea  to  declaration. 

No.  231.     Not  guilty 419 

Mesne  profits. 

No.  232.     Form  of  suggestion  of  claim  for 421 

Noi  233.    Form  of  plea,  non-assumpsit,  to  suggestion  of  claim 

for 422 

No.  298.    Form  of  scire  facias  to  revive  judgment  in 527 

eviction- 
No.  278.    Plea  denying 501 

No.  279.     Replication  to  same 502 

evidence— (Sfee  Depositions,  ante.) 
Production  of  documentary. 
No.  385.     Notice  to  opposite  party  to  produce  written  instrument, 

etc.,  on  the  trial 802 

EXCEPTIONS— (See  Bill  of  Exceptions.) 

FORMER  recovery- 
No.  119.     Plea  of 208 

No.  281.     Plea  of  former  conviction,  in  debt 503 

GARNISHMENT— (See  Attachment,  ante.) 
Forms  in. 

No.  224.    Affidavit  for  process  of 393 

No.  225.     Interrogatories  to  garnishee 394 

No.  226.     Answer  of 395 

guardian- 
No.  247.    Declaration  on  bond  of 457 

Same 458 

HA.BEAS    CORPUS— 
Forms  in,  generally. 

No.  282.     Petition  for,  where  petitioner  is  detained  without  war- 
rant   512 

No.  283.     Same,  where  petitioner  is  detained  under  warrant  of 

commitment 513 

No.  284.     Same,  by  parent  for  child 513 

No.  285.     Same,  where  petitioner  is  held  under  ca.  ad  res 513 


906  INDEX   TO   FOKMS. 

HABEAS  CORPUS— Conh'wied. 

No.  286.  Petition  for  ad  testificandum 514 

No.  287.  Master's  order  allowing  same  in  absence  of  judge 515 

No.  288.  General  form  of  writ  of 515 

No.  289.  Return  of  writ  of,  where  prisoner  is  in  custody. 517 

No.  290.  Same,  denying  detention 517 

No.  291.  Same,  by  party  not  an  officer 518 

No.  292.  Judge's  order  of  discharge,  in  vacation 520 

No.  293.  Judge's  order,  in  vacation,  remanding  prisoner 521 

No.  294.  Order  of  discharge,  by  court,  in  term 521 

No.  295.  Order  of  court,  in  term,  remanding  prisoner 521 

interpleader- 
No.  220.     Form  of,  in  attachment 388 

interrogatories- 
No.  225.    Form  of  interrogatories  to  garnishee 394 

No.  226.     Form  of  answer  of  garnishee 395 

No.  389.     Form  of,  in  taking  depositions 811 

INTOXICATING  LIQUORS— 

No.  350.    Declaration  in  case  for  sale,  etc 672 

No.  351.     Same  v.  seller  and  landlord 673 

No.  253.     Same,  in  debt,  on  license  bond — For  use  of  wife,  etc. . .  475 
No.  254.     Same,  for  care  of  intoxicated  person 476 

JUDGMENTS— 

Form  of  declarations,  on,  etc. 

No.  238.     On  judgment  in  same  court 440 

No.  239.     Same,  of  court  of  another  state 440 

No.  240.     Same,  of  justice  of  the  peace 442 

No.  297.     Form  of  sci.fa.  to  revive 526 

No.  298.     Same,  in  ejectment 527 

No.  119.     Foi-m,  plea  of  former  judgment  recovered 208 

No.  120.     Replication  to  No.  119,  denying  that  causes  of  action 

were  the  same 209 

LIBEL— (See  Case.) 

LIBERUM  TENEMENTUM— 

No.  215.    Plea  of 372 

license- 
No.  213.     Plea  of 370 

MALICIOUS  prosecution- 
No.  338.     Declaration  in  case,  for 655 

mandamus- 
No.  302.    Form  of  petition  for 549 

No.  303.     Form  of  answer  to  petition 553 

No.  304.     Plea  to  petition  for 554 

MERITS— Affidavit  of— 

No.  83.      Form  of 149 


INDEX   TO    FORMS.  907 

mining- 
No.  197.     Declaration  for  wrongfully  mining  coal 355 

No.  198.    Same,  for  wrongfully  mining  ore 355 

MOLLITER  IHANUS  IMPOSUIT— 

No.  203.     Plea  of 361 

NEW  assignment- 
No.  202.     In  trespass 374 

NEW  trials- 
No.  384.     Form  of  motion  for 797 

NIL  DEBET— 

No.  260.     Plea  of 487 

NON  DAMNIFICATUS— 

No.  275.     Plea  of 500 

NON  EST  FACTUM— 

No.  261.     Plea  of 489 

No.  262.     Same,  and  nil  debet 490 

No.  263.     Same,  after  craving  oyer 490 

notice- 
No.  385.     To  produce  written  instrument  on  trial 802 

No.  388.     To  take  deposition   of  witness    residing   in   another 

county 809 

No.  389.     To  take  deposition  upon  interrogatories  in  writing 811 

No.  392.     To  sheriff,  of  claim  to  property  taken  by  him 833 

NUL  TiEL  corporation- 
No.  140.    Plea  of 244 

NUL  TIEL  record- 
No.  267.     Plea  of 494 

onerari  non- 
No.  265.     Plea  of 493 

oyer— 

Form  of 504 

partner- 
No.  143.     Declaration  by,  in  account  against  partner 259 

PAYMENT- 

No.  110.     Plea  of,  in  assumpsit 197 

No.  272.    Same,  in  debt 493 

performance- 
No.  274.     Plea  of 499 

physician- 
No.  347.     Declaration  against,  for  neglect,  etc 669 

PLEAS— (Sf-e  Assumpsit  and  Pleas  in  each  Form  of  Action.) 

poor  person— 

Affidavit  for  leave  to  prosecute  as 19 


908  INDEX   TO    FOEMS. 

PRECIPE— 

Form  of,  for  summons  or  capias 6 

No.  386.     Same  in  debt 430 

Form  of,  for  subpoena 806 

No.  296.     Form  of,  for  scire  facias 526 

PROPOSITIONS   OF  LAW— 

No.  393.     Form  of  submission  of 848 

PUIS  DARREIN  CONTINUANCE— 

No.  141.     Pleaof 247 

QUESTIONS  OF  LAW  CERTIFIED— (See  Agreed  Cases.) 

QUO  WARRANTO— 

No.  306.     Form  of  information  by  attorney-general,  against  a  cor- 
poration.    (Plea  No.  308.) 576 

No.  307.     Same,  at  instance  of  relator,  etc.     (Plea  No.  309.) 577 

No.  308.     Form  of  plea  by  corporation  to  information  by  attorney- 
general  580 

No.  809,     Same,  at  instance  of  relator i  580 

RAILROADS— (See  Common  Carriers.) 

referees- 
No.  375.    Form  of  agreement  to  refer  cause  to 759 

No.  376.     Form,  order  appointing 760 

No.  377.     Form  of  report  of,  in  favor  of  plaintiff 760 

No.  378.     Same,  in  favor  of  defendant 760 

No.  379.     Form  of  exceptions  to  report  of 760 

REJOINDERS— To  Replications— 
Forms  of. 

No.    13.     Commencement  of  a  rejoinder  to  a  special  plea 59 

No.    15.     Conclusion  of  a  rejoinder  with  a  verification 60 

No.    16.     Rejoinder  to  a  double  replication 61 

(See  Defenses  to  Action  of  Assumpsit.) 

REPLEVIN— Action  of— 

No.  161a.  Form  of  affidavit  in 307 

No.  162.     Form  of  declaration  in 309 

No.  163.     Count  in  trover  to  be  attached,  where  part  of  goods 

can  not  be  found 309 

No.  345.     Declaration  against  sheriff  for  taking  insufficient  sure- 
ties in 667 

Foi'm  of  pleas  in. 

No.  164.     Non  cepit 310 

No.  165.     Non  detinuit 311 

No,  166.     Not  guilty  to  count  in  trover 312 

No.  167.     Property  in  defendant 313 

No.  169.     Property  in  stranger 314 

No.  171.     Justification  by  sheriff,  under  a  fi.  fa.,  against  a  third 

person 315 

No.  172.     Lien  on  property,  etc 317 

No.  173.     Property  held  as  pledge 317 


INDEX   TO    FORMS.  909 

REF-LEYIN— Continued. 

Form,  avowry,  etc.,  for  rent. 

No.  174.     Avowry  or  cognizance  for  rent 318 

Forms  of  pleas  in  bar  to  avoicry,  etc. 

No.  175.     Traversing  of  demise 318 

No.  176.     No  rent  in  arrear 319 

Forms  of  replications  to  pleas. 

No.  168.     Property  in  defendant,  denying  (Plea  167) 313 

No.  170.     Property  in  stranger,  denying  (Plea  169) 314 

SCIRE  FACIAS— 
Forms  in. 

No.  296.     Prcecipe  for  scire  facias 526 

No.  297.     To  revive  judgment 526 

No.  298.     To  revive  judgment  in  ejectment 527 

No.  299.    On  mortgage  to  foreclose 530 

No.  300.     Same,  etc 531 

No.  301.     On  a  recognizance  taken  in  open  court,  etc 533 

SEDUCTION— (See  Case.) 

set-off- 
No.  105.     Plea  of,  in  assumpsit 189 

No.  271.     Plea  of,  in  debt 498 

sheriff- 
No.  345.     Declaration   in  case  against,   for  taking  insufficient 

bond 667 

No.  257.    Same,  in  debt  for  refusing  to  permit  prisoner  to  see 

attorney 482 

No.  246.     Same,  on  bond  of,  for  failure  to  make  execution 453 

SIMILITER— To  Plea. 

No.  10.     Form  of 82 

SLANDER  AND  LIBEL— (See  Case,  Actions  on  the,  as  to  forms,  etc.) 
SON  ASSAULT  DEMESNE— 

No.  200.     Plea  of 358 

STREET  railway- 
No.  329.     Declaration  against,  for  injury  to  person 638 

SUBMISSION  TO  JUDGE— 

No.  383.     Form  of  agreement  to  submit  controversies  to  judge. .  783 

TAXES- 

No.  259.     Declaration  for  recovery  of 484 

TENANT  IN  COMMON— 

No.  142.     Declaration  by,  against  co-tenant  in  account 258 

tender- 
No.  121.  Plea  of 213 

No.  122.  Replication  to 215 

No.  123.  Same 216 

No.  266.  Same,  in  debt 494 


'910  INDEX   TO    FORMS. 

TRESPASS— Action  of— 
Foi^ms  of  declarations  in. 
For  Injuries  to  the  Person,  etc. 

No.  177.     For  an  assault,  alleging  special  damages 344 

No.  178.     For  a  common  assault 3^  " 

No.  179.     For  assault  with  pistol,  wounding,  etc 38(j 

No.  180.     For  riding  or  driving  against  plaintiff 346 

No.  181.     By  husband  and  wife,  against  husband  and  wife,  for  a 

battery  on  wife  by  the  other 346 

No.  182.     Common  count  for  false  imprisonment 347 

No.  183.     For  an  assault,  etc.,  and  false  imprisonment 347 

No.  184.     For  debauching  plaintiff's  daughter,  etc 348 

No.  185.     For  criminal  conversation 348 

For  Injuries  to  Personal  Property. 

No.  186.     For  taking  goods,  common  count,  de  bonis  asporta- 

tis 349 

No.  187.     For  chasing  cattle,  etc 849 

No.  188.     For  chasing  mare,  etc 349 

No.  189.     For  driving  carriage  against    plaintiff's  whereby  he 

was  thrown  out  and  his  carriage  damaged 350 

No.  190.     For  killing  plaintiff's  horse.. 350 

No.  191.     For  shooting  plaintiff's  dog 351 

No.  192.     Against  constable  on  the  statute,  for  taking  exempt 

property  in  execution 351 

For  Injuries  to  Real  Estate. 

No.  193.     For  trespass  in  dwelling  house,  breaking  open  doors 

and  seizing  goods,  etc 352 

No.  194.     Count  for  common  expulsion 353 

No.  195.     For  trespass  to  land,  entering  close,  etc 353 

No.  196.     For  cutting  down  and  carrying  away  trees,  etc 354 

No.  197.     For  digging  in  coal  mine,  and  carrying  away  coal 

therefrom 355 

No.  198.     For  digging  mines,  raising  ore,  taking  and  converting 

it 355 

Forins  of  pleas  in  bar. 

No.  199.     Not  guilty 357 

No.  200.     Son  assaidt  demesne 358 

No.  201.     Same,  defense  of  child,  etc 359 

No.  203.     Molliter  manus  imposuit,  to  preserve  the  peace,  etc. . .  361 
No.  204.     Same,    to  put  defendant  out  of  plaintiff's  dwelling 

house 362 

No.  205.     By  schoolmaster,  justifying  a  battery 363 

No.  206.     By  justice  of  the  peace,  in  an  action  against  him  and 

another,  justifying  the  issuing  of  a  capias,   under 

which  plaintiff  was  arrested  and  imprisoned 364 

No.  207.     Pleas  justifying  an  arrest,  as  constable  without  process.  364 

No.  208.     Same,  etc 365 

No.  209.     Same,  by  private  person 367 


INDEX    TO    FORMS.  911 

'TRESF  ASS— Co7itinued. 

No.  210.     By  sheriff,  justifying  taking  of  goods  under  a  fieri 

facias 367 

No.  212.     Injury  caused  by  plaintiff's  own  negligence 370 

No.  213.     License 370 

No.  215.     Liberum  tenementum 372 

Fonn  of  replications  to  pleas. 

No.  202.     General  replication,  de  injuria,  etc 359 

No.  211.    To  plea  of  justification  under  process,  etc 369 

No.  214.     To  plea  of  license 370 

No.  216.    To  plea  of  liberum  tenementum,  denying  the  plea 873 

No.  217.    New  assignment 374 

TROVER— Action  of— 

Forms  of  declarations  in. 

No.  159.     General  form 292 

No.  160.     By  executor,  for  conversion  in  lifetime  of  testator 293 

Form  of  plea  in  bar. 

No.  161.     Not  guilty 296 

WARRANTY— Breach  of— 

Declarations  for. 

No.    61.     Of  a  horse 118 

No.    62.     Of  goods  sold  by  sample 119 

No.  149.     Of  covenants  in  deed 270 

No.  150.     Same 271 

No.  151.     Same 272 

Pleas  of. 

No.  126.     To  declaration  on  note 225 

No.  128.     Same 228 

No.  129.     Same 229 

water- 
No.  335a.     Form  of  declaration  in  case  for  obstructing  natural 

flow  of 652 


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